Luxton v. North River Bridge Company, 147 U.
S. 337, is decisive of the question raised in this case
whether a final judgment or order has been entered by the circuit
court which could be taken by writ of error to the circuit court of
appeals.
This Court has jurisdiction to examine the proceedings in the
circuit court of appeals and to reverse its order if its ruling is
found erroneous, or the reverse if its ruling was correct.
This was a proceeding commenced by the Postal Telegraph-Cable
Company (hereinafter called the telegraph company) against the
Southern railway Company (hereinafter called the railway company)
to acquire by condemnation the right to construct its telegraph
line along and over the railway company's right of way through the
State of North Carolina. The petition therefor was filed by the
telegraph company in the office of the Clerk of the Superior Court
of Guilford County, North Carolina, on June 11, 1898. A summons was
issued requiring the railway company to appear before the clerk of
the superior court on June 22, 1898, and answer. On that day, the
railway
Page 179 U. S. 642
company entered a special appearance and filed a petition and
bond for the removal of the case to the United States Circuit Court
for the Western District of North Carolina. Sundry proceedings were
had in that court, such as a motion to remand, which it is
unnecessary to notice. On August 31, 1898, the telegraph company by
leave filed an amended petition. On September 15, 1898, the court
made an order by which it directed its clerk to appoint three
commissioners to assess damages and prescribed their powers and
duties. On September 19, 1898, the clerk appointed the
commissioners as directed and fixed the time and place for their
meeting, and on the same day issued a notice to the railway company
of his action. These orders were made on the application of the
telegraph company and without notice to the railway company.
Thereupon the railway company moved the court to set aside its
order of September 15 and for leave to answer. On September 23 the
court temporarily suspended the order of September 15. On October
24 an answer was filed, a demurrer of the telegraph company was
sustained, and when the railway company asked leave to introduce
testimony sustaining the averments of its answer, the court
overruled the application and refused to permit the railway company
to introduce testimony, and, so far as was needed, reinstated its
order of September 15, 1898. Before any further proceedings and
without waiting for the assessment of damages by the commissioners
and the confirmation of their award by the court, a writ of error
and supersedeas was obtained by the railway company, and the case
was transferred under such writ of error to the Circuit Court of
Appeals for the Fourth Circuit. That court, on March 31, 1899,
dismissed the writ of error for want of jurisdiction on the ground
that no final order had been entered in the circuit court. 93 F.
393. To review this ruling, this writ of error was sued out.
Page 179 U. S. 643
MR. JUSTICE BREWER delivered the opinion of the Court.
The single question we deem it necessary to consider is whether
a final judgment or order had been entered by the circuit court
which could be taken by writ of error to the circuit court of
appeals.
Luxton v. North River Bridge Co., 147 U.
S. 337,
147 U. S. 341,
is decisive of this question. Indeed, little more seems necessary
than a reference to the opinion in that case. There, as here, in
condemnation proceedings, an order was made appointing
commissioners to assess damages. To reverse this order, a writ of
error was sued out, and by that writ of error an attempt was made
to challenge the constitutionality of the act authorizing the
condemnation, but this Court dismissed the writ on the ground that
the order was not a final judgment, saying, after referring to
possible proceedings in the state court, that the action of the
United States circuit court could be reviewed here
"only by writ of error, which does not lie until after final
judgment disposing of the whole case and adjudicating all the
rights, whether of title or of damages, involved in the litigation.
The case is not to be sent up in fragments by successive writs of
error. Act of September 24, 1789, c. 20, § 22; 1 Stat. 84, c.
20; Rev.Stat. § 691;
Rutherford v. Fisher, 4 Dall.
22;
Holcomb v. McKusick, 20 How.
552,
61 U. S. 554;
Louisiana
Bank v. Whitney, 121 U. S. 284;
Keystone Co.
v. Martin, 132 U. S. 91;
McGourkey v.
Toledo & Ohio Railway, 146 U. S. 536."
Reference is made by counsel to
Wheeling & Belmont
Bridge Co. v. Wheeling Bridge Co., 138 U.
S. 287, in which this Court sustained its jurisdiction
of a writ of error to the Supreme Court of Appeals of West
Virginia, and inquired into the validity of a judgment of that
court affirming an order of a trial court appointing commissioners
under a somewhat similar statute. But that decision was based on
the fact that the order of the trial court had been held by the
state supreme court to be a final judgment on which a writ of error
would lie, and therefore, being a final judgment in the view of the
highest court of the state, it ought to be considered final here
for the purposes of review. But no such ruling obtains in the
Supreme Court of
Page 179 U. S. 644
North Carolina. On the contrary, that court has repeatedly held
that an order appointing commissioners in condemnation proceedings
is not a final judgment, nor subject to review until after the
confirmation of the award of the commissioners.
American Union
Telegraph Company v. Wilmington, Columbia & Augusta Railroad
Company, 83 N.C. 420, is a case directly in point. In that
case, a proceeding was commenced by a telegraph company to obtain a
right of way for the construction and operation of its telegraph
lines along the roadway of a railroad company, and, as shown by the
opinion of the supreme court at a hearing before the trial judge,
he adjudged the telegraph company entitled to the right of way and
appointed commissioners to ascertain and report the damages. An
attempt was made to take this order to the supreme court for
review, but the right to do so was denied, the court saying (p.
421):
"Upon a careful examination of the statute and the portions of
the act of February 8th, 1872, by reference incorporated with it,
and regarding the policy indicated in both to favor the
construction and early completion of such works of internal
improvement, telegraphic being upon the same footing as railroad
corporations, we are of opinion it was not intended in these
enactments to arrest the proceeding authorized by them at any
intermediate stage, and the appeal lies only from a final judgment.
Then, and not before, may any error committed during the progress
of the cause, and made the subject of exception at the time, be
reviewed and corrected in the appellate court, and an appeal from
an interlocutory order is premature and unauthorized."
In
Commissioners v. Cook, 86 N.C. 18, the same ruling
was made and the prior case in terms affirmed. Again, in
Norfolk & Southern Railroad Company v. Warren, 92 N.C.
620, the two prior cases were cited and approved. Still again, in
Hendrick v. Carolina Central Railroad Company, 98 N.C.
431, the same ruling was made, although it appeared that the facts
were all agreed upon, the court saying (p. 432):
"That the defendant broadly denies the plaintiff's alleged
rights and grievances, and the parties agreed upon the facts, could
not give the right of appeal at the present stage of the
Page 179 U. S. 645
proceeding, because the order appealed from was nevertheless
interlocutory, and an appeal from the final judgment would bring up
all questions arising in the course of the proceeding without
denying or impairing any substantial rights of the defendant."
"The order appealed from is very different from that in the
similar case of
Click v. Railroad Co., 98 N.C. 390; in the
latter, the court denied the motion for an order appointing
commissioners and dismissed the proceeding, thus putting an end to
the right of the plaintiff therein, and therefore an appeal lay in
that case."
The changes in the statute referred to by counsel for plaintiff
in error, made subsequently to these decisions, may affect the mode
of procedure and the basis for estimating damages, but in no manner
affect the question as to the finality of the order appointing
commissioners.
Neither does the order made by this Court at the last term,
denying the defendant's motion to dismiss, have any bearing on this
question. That ruling determined simply our jurisdiction, not that
of the circuit court of appeals. That we have jurisdiction in such
a case had already been adjudged.
Aztec Mining Company v.
Ripley, 151 U. S. 79.
Having jurisdiction to examine the proceedings in the circuit court
of appeals, if we had found its ruling erroneous, we should have
reversed its order dismissing the writ of error, but as we hold
that its ruling was correct, its judgment is
Affirmed.
