George's Creek Coal & Iron Co. v. New Central Coal Co., 40 Md. 425

George's Creek Coal & Iron Co. v. New Central Coal Co.

40 Md. 425 | Md. | 1874

Miller, J.,

delivered the opinion of the Court.

The appellant’s counsel concedes that no appeal lies irom the order of the Circuit Court, confirming the inquisition condemning its lands for the construction of the appellee’s railroad. It was settled in Condon’s Case, 8 G. & J., 443, that the jurisdiction of the Circuit Court in such cases is special and limited, and no appeal lies from its action therein, to any other Court. The law of that case has been recognized and adopted by all the subsequent decisions of this Court on that subject. The appeal in this case is not taken from the order confirming the inquisition, but from an intermediate order, overruling the appellant’s motion to quash and set aside an order for a new inquisition and warrant, and in this, it is insisted the Circuit Court exceeded its jurisdiction, and thence the appeal lies.

The appellee, by its charter, (Acts of 1865, ch. 206, and 1872, ch. 50,) was invested with the same power to condemn lands for the construction of its road, as that granted to the Baltimore and Ohio railroad company by the 15th section of the Act of 1826, ch. 123, incorporating that company, and under the provisions of this section, the proceedings in this case were had. These proceedings are not set out in the record in the order in which they occurred, but they appear to have been as follows :

The appellee, on the 22nd of January, 1872, applied for and obtained from a Justice of the Peace, in the usual form, a warrant to condemn a right of way for its road over the lands of the appellant. Under this warrant the sheriff summoned a jury who met upon the land, and on the 2nd of February, 1872, found an inquisition, which was returned to the Circuit Court, at its following April term, lor confirmation. The appellant filed exceptions to its ratification, which were heard, and the inquisition was set aside by the Court at its said April term, 1872. The appellee thereupon moved the Court for a new inquisition, and the case was then continued until the following October term. The *434granting of this motion was not further pressed by the appellee until the 27th of February, 1873, when a petition was filed, explaining the delay. That petition states that on the 22nd of February, 1872, while the first inquisition was pending before the Court for confirmation, the appellant filed a bill on the equity side of the Court for an injunction to prevent the appellee from proceeding to acquire its right of way, and on the 24th of that month the injunction was granted by which the appellee was prohibited from obtaining an order for a new inquisition; that this injunction was continued at the hearing of the motion to dissolve, and the appellee thereupon took an appeal from the order granting the injunction and refusing to dissolve the same; that both these orders were reversed by the Court of Appeals and the bill dismissed, which fact the appellee had just ascertained, and therefore, now applies to the Court to order a new inquisition. Upon this application, the Court, on the 5th of March, 1873, passed an order reciting the dissolution of the injunction by the Court of Appeals, and directing a warrant for another inquisition to be issued by its Clerk. In obedience to this order, tins Clerk issued a warrant to the sheriff, on the 25th of the same month. This warrant appears to have been signed by the Clerk only. On the 29th of the same month (March, 1873,) the appellant filed its motion in writing, to set aside the order of the 5th of March, granting a new inquisition, and assigned numerous reasons in support of that motion. On the 1st of April following, the Court passed an order setting this motion down for hearing on the 21st day of April, and further ordered that the appellant, in taking any steps to resist the inquisition directed by the order of the 5th of March, shall not be taken to have waived in any manner its right to object to the passage of that order, but may take any exceptions thereto .which it may be advised to take. The sheriff then proceeded under the warrant from the Clerk to summon a jury, who met upon the land, and on the 8th of

*435April, 1873, found an inquisition which was returned by the sheriff to the Clerk of the Court, on the 12th of that month for confirmation. The appellant then filed exceptions to this inquisition, and moved that it be quashed and set aside. Thereupon, by consent of parties, these exceptions were set down for hearing on the 25th of April, on which day the appellant renewed its motion to set aside the,, order of the 5th of March, and filed a challenge to the array of jurors. The exceptions and this motion were then heard, and on the 5th of May, 1873, the Court passed an order directing its Clerk to enter upon the docket of April term, 1872, after the motion for another inquisition, “under curia and continued,” and then to docket the case on the dockets of the several terms, including the January term, 1873, and make entries of continuances, and also to amend the process issued to the sheriff, under the order of Court, to take a new inquisition, by testing the same in the name of the Chief Justice, in the usual way—that is, as of the first day of the January term, 1873. The Clerk then made the docket entries -and amended the warrant as directed, and on the same day (May 5th, 1873,) the Court overruled the motion to set aside the order directing a new inquisition, and confirmed the inquisition, notwithstanding the objections. The appeal, as already stated, is from the judgment overruling the appellant's motion to quash and set aside the order for a new inquisition and warrant, and the warrant itself.

Many of the objections to these proceedings urged in argument go to mere formal irregularities and do not touch the question of jurisdiction, which alone can be considered by this Court. Our inquiry must be confined to the question, whether the Circuit Court by these proceedings, has in any respect exceeded the power and jurisdiction conferred upon it by the statute under which it acted, so that this appeal can be entertained and its action reversed. Such of the objections as appear to us to reach this question we shall now consider.

*4361st. It is said the judgment setting aside the first inquisition was a final judgment in favor of the appellant, and no new inquisition having been ordered at that time, or during the term at which the judgment was rendered, the Court had no power afterwards to alter the judgment or order a new inquisition, and further that the motion for a new inquisition then made abated by not being regularly continued. Much of the argument in support of this position was rested upon the formal extension set out in the record, of the order or judgment setting aside the inquisition. As thus set out it is that the appellee “take nothing by its writ of inquisition aforesaid, but that the same he quashed and that” the appellant “go thereof tuithout day, do.’’ In explanation of its appearance in this form the clerk states that the record was made up according to the old form of making up records, at the request and by the order of the appellant’s attorneys, and it is quite plain, jurisdiction is not dependent upon the form in which the clerk may have extended the Court’s order. But apart from this, the case is not one to which the rules of practice and doctrine of abatement governing actions inter partes under the general jurisdiction of the Court can he applied. It is a case where special jurisdiction is conferred .by an Act of the Legislature and if the proceedings are in conformity with the Act it is all that is required. Now the provisions of the statute in this respect are simply that the inquisition taken under the magistrate’s warrant shall be returned by the sheriff to the clerk of his county, and by him ‘ ‘filed in his Court, and shall he confirmed by said Court at its next session, if no sufficient cause to the contrary be shown ; and when confirmed shall be recorded by said clerk at the expense of the company, but if set aside, the said Court may direct another inquisition to he taken in the manner above prescribed.” No time is here limited within which the power to direct another inquisition may be exercised, and, looking to the object and pur*437poses to be attained and accomplished by such inquisitions, we are clearly of opinion the power continues and remains in the Circuit Court until the company seeking the condemnation may choose to call for its exercise. It may be exerted at the term at which the first inquisition is set aside or at any subsequent term so long as the power to condemn under the company’s charter exists. It is the usual practice, and a very proper one for the purpose of facilitating the regular and orderly dispatch of their business, for Courts to have these cases entered upon their dockets, and docket entries of continuances and other proceedings made therein as in other cases, but the power here in question is in no wise dependent upon such entries. This construction of the statute is a conclusive answer to all the argument based upon the absence of such entries, the non-continuance of the case, and want of power in the Court to order mero motu the continuances to be entered. But though this answer is thus conclusive, it is not out of place here to remark that the delay in pressing for a new inquisition in this case is satisfactorily explained in the appellee’s petition of the 27th of February, 1873. It has been said, this petition failed to disclose the fact that the appellee, when it took its appeal, gave an appeal bond which removed the injunction as an obstacle to the immediate obtention of the new inquisition. But conceding this to have been the case, it was, nevertheless, eminently proper both for the appellee and Court to delay action and the expense of another inquisition until the important question of the right to condemn, raised by the appellant’s bill was finally settled.

2nd. It is next objected that the appellant had no notice of the application for a new inquisition and no opportunity to be heard against the petition and motion for it, and it is contended that without such notice the order directing it was passed without lawful authority. Here again the statute furnishes a complete answer to the objection. It *438does not require any notice to be given to the land-owner, either of the original application to the magistrate, or of that to the Court for a new inquisition when the first has been set aside. However important notice in such cases may be, it is sufficient for the question we are now considering, that the law-makers have not made it a prerequisite to the validity of the proceedings. It is probable the Legislature thought the construction of such works of public interest ought not to be delayed by the necessity of giving notice to parties not sui juris, and non-residents of the county where the lands'to be condemned were situated, and that the requirement of a previous attempt to purchase from resident owners sui juris, and failure to agree was sufficient notice to them that the company would proceed to have their lands condemned. But we need not speculate as to what Avas the motive of the Legislature in omitting the requirement of notice in such cases; they have passed a law which confers jurisdiction upon the Courts to pass orders like this without notice.

3rd. Another objection is that the Court had no power to amend and make valid the warrant which the clerk issued under its order; and that this warrant was void when issued for want of a teste, and is in other respects defective and insufficient. This assumes not only that the warrant was a writ, or one of the regular processes of the Court, but that it was essential to the validity of the inquisition which the Court was empowered to direct. But this is by no means the case. Such a warrant is not one of the regular writs known under the head of process and might have been dispensed with altogether. According to our construction of the statute, the power of the Court to “ direct another inquisition to betaken” after the first has been set aside, may be carried out by an order much less formal than that adopted in this case, addressed directly to the sheriff, commanding him to proceed and take a new inquisition. It was certainly more regular and *439formal to direct a warrant to be issued by tbe clerk, and if it be issued under his hand and the seal of the Court, no possible objection could be taken to that mode of procedure. But certain it is that no defects in the warrant or in the proceedings under it like those relied on here, can affect the question of jurisdiction now under consideration.

(Decided 23rd June, 1874.)

This disposes of all the points of objection and argument we deem it important to notice, and finding that the Circuit Court has, in these proceedings, in no respect exceeded its jurisdiction, the motion to dismiss this appeal must prevail.

Appeal dismissed.