41 W. Va. 747 | W. Va. | 1896
On the 18th day of January, 1895, the Wheeling Bridge & Terminal Railway Company presented its petition to the Circuit Court of Marshall county for the taking by condemnation, under chapter 42 of the Code, for the purposes of its road, of certain real estate in the city of Ben wood, belonging to the defendant, the Wheeling Steel & Iron Company.
The Wheeling Steel & Iron Company appeared, and filed an answer resisting such condemnation, and the court, by order entered on the 13th day of July, 1895, found that the Wheeling Railway Company had lawful right in this proceeding to take and acquire title, upon payment of just compensation, to that portion of the parcel of laud in plaintiff’s petiton mentioned for the purposes of its railroad as therein stated, and commissioners to ascertain what would be a just compensation were duly selected and appointed; and from such order this writ of error was allowed.
The point is made that this order is interlocutory, that no statute allows the writ in such case, and therefore it should be dismissed as improvidently allowed.
We think the point well taken. The proceeding is one
If there had been no writ of error, the next step in this one continuous proceeding, the commissioners having, under section 14, ascertained what would be a just compensation, and, under section 15, the report being returned and filed, it would, under section 17, be ready for exceptions, and either party could demand a jury of twelve freeholders to ascertain the compensation. If such jury had been demanded, and a verdict found, and the court, on motion of either party, had made an order granting a new trial, this being a civil case, then, under the ninth clause of section 1 of chapter 185, an appeal might have been taken from the order without waiting for the new trial to be had; but no order staying the further proceedings of the applicant could be had except in pursuance of section 20 of chapter 42. Here an appeal to an interlocutory order is expressly given as exceptional, and thus tending to show the general rule. Supposing the amount of compensation to be determined, the next step is to confirm the report, and order it to be recorded in the common-law order book. Then, upon the payment to the party or into court, the land would be absolutely vested in the applicant. Now, we have reached a final judgment, such as was held to he appealable in the case of B. & O. R. Co. v. P. W. & K. R. Co., 17 W. Va. 812; Railroad Co. v. Pack, 6 W. Va. 397.
The writ of error can be brought only on a final order or judgment. See 3 Bac. Abr. p. 325, and authorities cited; 1 Freem. Judgm. § 16 et seq.; 1 Am. & Eng. Enc. Law, 617. It is a process of common-law origin, and is the appropriate remedy to bring up final judgments of courts of record following the course of the common-law, or of new tribunals unknown to the common-law, but following their procedure. 1 Am. Enc. Pl. & Prac. 26. The writ is in use in this state, and is the proper method of appeal (in the generic sense) in this class of cases, and such seems to be
The order appointing commissioners is not a final one, and not appealable, unless by express provision of the statute. Lewis, Em. Dom. § 551, citing Williams v. Railroad Co., 13 Conn. 110; Freshour v. Turnpike Co., 104 Ind. 463 (4 N. E. 157); Commissioners v. Cook, 86 N. C. 18. Our statute, properly read and construed, contains no such provision. It is chapter 135 of the Code (Ed. 1891, p. 848). Section 1 reads as follows: “A party to a controversy in any circuit court may obtain from the Supreme Court of Appeals or a judge thereof in vacation an appeal from or writ of error or supersedeas to a judgment, decree or order of such circuit court in the following cases: First, in civil cases, where the matter in controversy exclusive of cost is of greater value or amount than one hundred dollars wherein there is a final judgment, decree or order. Second, in controversies concerning the title or boundaries of land, the probate of a will, or the appointment of a personal representative, guardian, committee or curator. Third, concerning a mill, road way, ferry or landing.”
When an action of ejectment is brought where the controversy concerns the title or boundaries of land, it has never been contended that a writ of error can be taken to any but a final judgment, except where there is an order granting a new trial; and this is by virtue of the ninth clause, which expressly gives the appeal from such inter
The case now in hand may fall within the first clause, because it is a civil case in which the matter in controversy may be of greater value than one hundred dollars. It is not confined to mere money demands for any given amount, but it embraces controversies concerning other things, where the value is greater than one hundred dollars. But that is no reason why it may not also fall within the third clause, as one concerning a road or way. Both terms are generic, and in a case involving somewhat the same question as to the comprehensiveness of meaning of the word it was held to be generic comprehending a turnpike road. Hill v. Turnpike Co., 1 Rob. (Va.) 263; Revisor’s Report of Code of 1849, page 885, note. If it also falls under clause 3, then this Court has jurisdiction, no matter what the value the matter in controversy may be. Under the first clause it is expressly limited to a final judgment. Under the third clause it is not given expressly or by any necessary implication to an interlocutory judgment or order, but in the ninth clause it is expressly given to the interlocutory judgment if a new trial is granted. For a discussion of the general subject, see Canal Co. v. Hoye, 2 Gratt. 514; Miller v. Navigation Co., 32 W. Va. 46, 52 (9 S. E. 57). Upon the subject of fragmentary appeals, see McCall v. Peachy, (1798) 1 Call, side pages 56, 59; Wood v. Harmison (1895) 41 W. Va. 376 (23 S. E. 560).
The case of Pack v. Railroad Co., 5 W. Va. 118, was decided in 1872, under the Constitution of 1863 and the Code of 1868. See Const. 1863, Art. VI, s. 8, Code 1868, p. 30; Id. p. 639, c. 135, s. 1—where the first clause is as follows: First, from a final judgment or decree concerning the title or boundaries of land; or, second, concerning the probate of a will, etc.; or third, concerning a mill, road way, ferry or landing; or, ninth, in any case where there is an order granting a new trial, etc., as in the present statute. The cause had so far proceeded that the commissioners had been appointed, had ascertained the compensation, had reported, and the compensation ascertained had been paid into court, when the landowner appeared and moved to set aside the
The case of Pittsburg, W. & K. R. Co. v. Benwood Iron Works, 31 W. Va. 710 (8 S. E. 453) had reached the stage when the writ of error was allowed that this case has reached. There was no motion to dismiss appeal as improvidently allowed, nor was the question discussed or considered by the Court, though discussed in the brief of one of the counsel, conceding the order to be not final, but interlocutory, and made appealable expressly by the statute. When the case reached the supreme court of the United States on appeal, the question was raised by motion to dismiss appeal as improvidently awarded. It was met with the answer: “If the supreme court of a state holds a judgment of an inferior court of the state to be final, we can hardly consider it in any other light in exercising our appellate jurisdiction.” Wheeling &. Bridge Co. v. Wheeling Bridge Co., 11 Sup. Ct. 301. To have dismissed the appeal, leaving the final judgment of the state court to stand undisturbed, would have been, in effect, a denial of the right of appeal. In the case of Wheeling Bridge & T. Ry. Co. v. Camden Con. Oil Co., 35 W. Va. 206 (13 S. E. 369) the
If the court in the case in hand had set aside the verdict of the jury, and awarded a new trial, the losing party on the motion could have been granted a writ of error, and with stay of proceedings by supersedeas, because the ninth clause of section 1 of chapter 135 expressly gives the appeal from such interlocutory orders. In such case it would tend to expedite the proceedings. In other respects it would be requiring the appellate court to decide a mere preliminary question of law in advance of what might turn out to be the controlling facts of the case, and to make a decision for any practical purpose utterly futile; for I take it for granted that until the commissioners make return, and file a report ascertaining what will be a just compensation for the land proposed to be taken, as provided in sections 14 and 15 of chapter 42, it remains in the power of the applicant to repudiate the whole proceeding (Railroad Co. v. Nesbit, 10 How. 395, 399) or to discontinue it, Railroad Co. v. Bradford, 6 W. Va. 220, 234, 237.
But the serious objection to this fragmentary appeal not expressly allowed by law is that it contravenes the obvious legislative intent to free such proceedings from delay, and from being thwarted or stayed by order of supersedeas or injunction, unless it is manifest that the applicant is insolvent, or that he or his officers, agents, or servants are transcending their authority, or that such interposition is necessary to prevent injury which can not be adequately compensated in damages; thus rendering nugatory the very important section, No. 20 of chapter 42, which however harsh, apparently has been found to be of supreme importance, indispensable almost in a certain class of cases in advancing the policy of the state in regard to such public improvements. See 2 Bart. Law Prac. 1295.
For the reasons given, the motion to dismiss the writ of error in this case as improvidently allowed is also sustained.