Opinion
No. 32224.
March 28, 1938.
1. REMOVAL OF CAUSES.
If order remanding cause from federal to state court was void, it was of no efficacy, the case was still pending in the federal court, and the state court from which cause had been removed was without jurisdiction thereof.
2. REMOVAL OF CAUSES.
Where case instituted in state court had been removed to federal court for Northern District of Mississippi and federal District Judge for Southern District of Mississippi had been assigned to Northern District, and where application for remand of case to state court had been submitted to the assigned judge outside the territorial limits of the Northern District, he was without power to decide the application. (Jud. Code, sec. 18, 28 U.S.C.A., sec. 22).
3. PROHIBITION.
Statute extending scope of writ of prohibition in eminent domain cases leaves in full force other common-law grounds for writ of prohibition, including want of jurisdiction in the offending court to try the case, the trial of which is sought to be prohibited (Code 1930, section 1510).
4. PROHIBITION.
Where order remanding condemnation proceeding from federal to state court was void, the remedy of appeal from judgment fixing amount of compensation did not preclude resort to writ of prohibition, since the appeal would not stay right of condemner to appropriate land to public use, and would not prevent irreparable injury from being inflicted on landowner, even though judgment of condemnation should be set aside by appellate court (Code 1930, sections 1497, 1510).
5. PROHIBITION.
Where federal District Judge for Southern District of Mississippi had been assigned to Northern District, condemnation proceeding had been removed to federal court of the Northern District, and the assigned judge without territorial limits of the Northern District on application not presented within Northern District made an order remanding condemnation proceeding to state court, the landowner was entitled to writ prohibiting state court from proceeding with the condemnation case, since the order of remand was void and remedy of appeal from the judgment of condemnation was inadequate (Code 1930, sections 1497, 1510).
ON MOTION. (Division A. May 23, 1938.) [181 So. 517. No. 32224.]APPEAL AND ERROR.
The reviewing court, on motion therefor, corrected judgment appealed from so that judgment, which was affirmed, would conform to intent of reviewing court's opinion.
APPEAL from the circuit court of Leflore county; HON. S.F. DAVIS, Judge.
A.H. Bell and R.C. McBee, both of Greenwood, for appellant.
When this matter of considering the motion to remand the cause that had been removed to the Federal District Court at Clarksdale was presented to Judge Edwin R. Holmes, it was then his duty to inquire into the jurisdiction of the motion; that is, whether he had the jurisdiction to hear and determine the same. In doing so, it became his duty to inquire into the following conditions: (a) Whether he had been appointed by the senior circuit judge of the circuit district to hold the district court in the place or in aid of the judge of the district wherein this cause was pending, and to have power to exercise the same powers vested in the judge of said district. (b) Whether the term of court that began in Clarksdale on the fourth Monday of January, 1935, had been finally adjourned by a proper order on the minutes thereof.
It is presumed that Judge Edwin R. Holmes came to the conclusion that he was so appointed and that such matter had been referred to him by the judge of the district in which Clarksdale is located and that he was to serve in the place or in the aid of the judge of said district. There seems to be no objection seriously presented to this feature of the cause by the appellee.
Having considered that he was to aid the judge of the Clarksdale District, it was then the duty of Judge Edwin R. Holmes to determine if the term of court began on the fourth Monday in January, 1935, had been closed or was still open, either for all purposes, or for such limited purposes, such as the entertaining of motions to remand and the like. It is a presumption of law that Judge Edwin R. Holmes did make such inquiry, and that on such inquiry he found that either the said January 1935 term was not adjourned, or that there was an order on the minutes thereof leaving said district court open for the purpose of entertaining and deciding motions to remand causes to state courts that had previously been removed to the Federal District Court. There is no showing by the appellee that such order does not exist, and the presumption of law is that it does exist and that Judge Edwin R. Holmes so inquired into said term and so determined that an order permitting the court to hear motions to remand at any time was entered on the minutes of the said court.
15 C.J. 827; Broom v. Bd. of Suprs., Jefferson County, 158 So. 344, 171 Miss. 586; Walton v. Gregory Funeral Home, 154 So. 717, 170 Miss. 129.
If there is any construction that can be placed on the acts of Judge Edwin R. Holmes in remanding this cause that upholds its validity, then it is the duty of the court to follow such construction. An act of the judge in vacation may be an act of the court, although the court be held over as the presumption this was held.
8 Am. Eng. Enc. Law (2 Ed.) 22, 23; L. N.R.R. Co. v. McDonald, 79 Miss. 641.
Regarding the presumption of the validity of this order of remand, and respecting the duty of the court in interpreting it, or construing it, it seems to be almost universally held that judgments will, if possible, be declared valid, and the inference is that such are valid, until so shown by inescapable evidence to the contrary.
Scott County v. Dubois, 130 So. 106, 158 Miss. 245.
An inference must be drawn, therefore, as to whether the District Court that convened at Clarksdale on the fourth Monday in January, 1935, had entered an order of adjournment sine die, or had remained open for the hearing of motions to remand causes or other such matters as often come before the court when not actually engaged in the trial of cases during the session. Nothing appearing in the record, the presumption is that the court had not adjourned sine die, but was open for the hearing and deciding of such motion to remand.
15 C.J. 899, sec. 270; Harrison v. German-American F. Ins. Co., 90 Fed. 758; Wallace v. Clements, 248 N.W. 58; Realty Holding Co. v. Donaldson, 294 Fed. 541; Abbott v. Brown, 241 U.S. 606, 60 L.Ed. 1199.
It has been the uniform practice and custom for attorneys to meet at the chambers of the judge or at his office and present motions of this character.
Judge Holmes was appointed to assist the federal judge in the district court of the Northern District. He had all powers that the judge of that district had, but relinquished none of his powers in his district; in other words, he became judge of both districts while he was so acting for the judge of the northern district. The provision of statute authorizing a judge of one district to serve in the aid of another judge of a different district was enacted for the quicker dispensation of justice, the orderly trial of cases, and the efficient dispatching of business of the courts, and to prevent the law's delay. The appointment of Judge Holmes to assist the judge of the Northern District was in effect at the time of the signing of the order remanding this cause to the state court.
Cheesman v. Hart, 42 Fed. 98; In re American Hoke Furnishers' Corp., 296 Fed. 605; Apgar v. U.S., 255 Fed. 16; 28 U.S.C.A., sec. 13; 33 C.J. 966, sec. 92; Harlan v. McGourin, 180 Fed. 119, 54 L.Ed. 1101; U.S.C.A., sec. 731.
The order is valid on its face, and it recites that the defendant had been given "proper notice of the time, place and motion for remand, and of the hearing of said motion on this date before the undersigned in Yazoo City, Mississippi." The objection to this order as presented by the appellee constitutes a collateral attack on the judgment of the Federal District Court of Mississippi.
Under the authority of this order, which was issued by virtue of the provisions of Section 21, Title 28, of the U.S.C.A., Judge Holmes had authority to hear this motion and render the order remanding it just as the judge of the Northern District could have done.
Apgar v. U.S., 255 Fed. 16.
This is not a direct attack on the judgment, and the other matters objected to by the appellee cannot be entertained in this proceedings.
Cotton v. Harlan, 87 So. 152.
On collateral attack, every intendment is in favor of the judgment.
Martin v. Miller, 60 So. 772; 28 U.S.C.A., sec. 71, 80, page 378.
The court could on its own motion have remanded this cause without any notice to either party, if at any time it appeared that the suit was not a one properly within the jurisdiction of the district court.
Indiana v. Tolleston Club of Chicago, 53 F. 18.
We submit that Section 1510 does not apply to county courts, but applies only to special courts of eminent domain. The Supreme Court of Mississippi has twice held that there are no special courts of eminent domain in counties where the county courts exist.
Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140; Miss. State Hwy. Dept. v. Haines, 139 So. 168.
Section 1510, we contend, applies only to courts of eminent domain, and cannot apply, because of Section 17 of the Constitution, to county courts. Section 1510 does not apply to eminent domain proceedings in county courts. It is a part of Chapter 26 of the Code of 1930. It provides that the writ of prohibition shall be issued by the Circuit Judge who, "shall issue a temporary order staying the hearing in the court of eminent domain until the cause can be tried under this section by the circuit judge, and if on the hearing last aforesaid the petition be sustained a permanent writ of prohibition shall issue." It is noted that the temporary order stays the hearing in the court of eminent domain. In Leflore County there is a county court.
City of Hattiesburg v. Pritchett, 134 So. 140, 160 Miss. 342; Miss. State Hwy. Dept. v. Haines, 139 So. 168, 162 Miss. 216.
The above authorities hold that there is no special court of eminent domain in Leflore County, and it is our opinion and contention that Section 1510 does not and cannot apply to a suit filed in the County Court. This point is jurisdictional and can be raised at any time and in any manner.
To permit the question of public necessity to be reviewed by a court, as provided by Section 1510 of the Code of 1930, is a violation of Section 17 of the Constitution of the State of Mississippi.
Means Johnston, Sam L. Gwin, and Berry D. Brown, all of Greenwood, for appellee.
The proceeding in eminent domain was a removable cause and the City of Greenwood under the jurisdictional and removal statutes of the United States was a citizen of Mississippi.
1 Hughes Federal Practice, sec. 302, pages 226, 227; Sugar Creek, P.B. P.C.R. Co. v. McKell, 75 Fed. 34; Deepwater Ry. Co. v. Western Pocahontas Coal Lbr. Co., 152 Fed. 824; Searl v. School Dist., 124 U.S. 197, 31 L.Ed. 415, 8 S.Ct. 460; 7 Cyc. of Federal Procedure, sec. 3624, page 586; 2 Hughes Federal Practice, sec. 714, page 39; City of Detroit v. Detroit City Ry. Co., 54 Fed. 1; City of New York v. Sage, 206 Fed. 369.
The eminent domain proceeding was legally removed by proper procedure and by the judgment of the county court, from the county court into the proper division of the District Court of the United States for the proper district; the removal perfected by the filing of a certified copy of the record and the pleading by the defendant, Humphrey Co., Inc., in the District Court within the time provided by the United States statute; exclusive jurisdiction transferred to the District Court; and the case thereupon became and was within the provision of the United States statute, that "the cause shall then proceed in the same manner as if it had been originally commenced in the said District Court."
28 U.S.C.A., sec. 72 (Judicial Code, sec. 29); 4 Hughes Federal Procedure, page 313, sec. 2543; Miller v. Southern Bell Tel. Tel. Co., 279 Fed. 806; Hinman v. Barrett, 244 Fed. 621; Potter v. General Baking Co., 213 Fed. 697; Lewis v. Erie R.R. Co., 257 Fed. 869; Dobie on Federal Procedure, sec. 107; Rose's Federal Jurisdiction and Procedure (3 Ed.) secs. 4 and 425; Ritchey Lithographing Corp. v. Robertson-Cole Distributing Corp., 199 App. Div. 362, 191 N.Y.S. 870; 4 Hughes Federal Practice, page 311, sec. 2542; Chase v. Erhardt, 198 Fed. 305; 4 Hughes Federal Practice, sections 2581-2583; Lee v. Continental Ins. Co., 292 Fed. 408; Streckfus Steamer v. Kiersky, 163 So. 830; Standard Oil Co. v. Decell, 166 So. 379; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; Sutton v. Pacific S.S. Co., 3 F.2d 72; Ex parte Hollon Parker, 131 U.S. 221, 33 L.Ed. 123, 9 S.Ct. 708; Niccum v. Northern Assur. Co., 17 F.2d 410; Bon v. Midwest Refining Co., 30 F.2d 410; 4 Hughes Federal Practice, sec. 2675.
The proceeding to remand the eminent domain suit to the County Court of Leflore County can be legally heard and determined only by the United States District Court, during a term thereof held in and for the Delta Division of the Northern District of Mississippi. No valid judgment could be rendered otherwise.
28 U.S.C.A., sec. 80, Judicial Code, Sec. 37; Historical Note to 28 U.S.C.A., sec. 80; Henry v. West, 49 F.2d 813.
The Circuit Court of Appeals and the District Courts of the United States are not possessed of the jurisdiction of courts of the common law, and they have such jurisdiction only as is conferred on them by acts of Congress.
U.S. v. Curran, 297 Fed. 946.
The United States District Courts have such jurisdiction as Congress confers.
Heine v. New York Life Ins. Co., 50 F.2d 382; Rose's Federal Jurisdiction and Procedure (3 Ed.), sec. 22, page 27; Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147; 28 U.S.C.A., sec. 13, Judicial Code, sec. 9; 1 Hughes Federal Practice, sec. 239; Grover B.S.M. Co. v. Florence S.M. Co., 21 L.Ed. 914; Ackerson v. U.S., 15 F.2d 268; Payne v. Garth, 285 Fed. 301; Pollock v. Farmers' Loan Trust Co., 157 U.S. 429, 39 L.Ed. 759, 15 S.Ct. 673; Pacific S.S. Co. v. Peterson, 278 U.S. 130, 73 L.Ed. 220, 49 S.Ct. 75.
Inasmuch as it is seen that a United States District Judge has no authority in vacation except such as is specifically conferred upon him by Congress; and, inasmuch as there is no general authority conferred by any statute of the United States upon a district judge to hear, determine, or adjudicate, whether of law or of fact, any issue, phase, proceeding, or part thereof, or to take any action whatsoever in vacation, in any matter involved in a suit at law pending in a district court; and, inasmuch as there is no special statute authorizing the remanding of causes in vacation, nor any statute, other than the general remanding statute, under or by analogy with which even color of legal right to remand in vacation a suit at law could be claimed; and, inasmuch as before an order of a district judge made in vacation, purporting to remand a suit at law to a state court can be declared valid, specific authority for the making thereof must be contained, expressly or by necessary implication, in some statute of the United States, and moreover, must be capable of being pointed out; it is obvious, therefore, that unless the general statute authorizing dismissal or remand by the court (28 U.S.C.A., sec. 80, Jud. Code, sec. 37) of suits pending in a district court, confers upon the district judge of the district in which the suit is pending, expressly or by necessary implication, the power to remand a suit at law in vacation, the order remanding the eminent domain proceeding involved in the case at bar is coram non judice even if it had been made in vacation in the division and district where it is pending by the district judge of and resident in that district, and, a fortiori, is void because initiated and made outside of such division and outside of such district, in a distinct, separate and foreign territorial jurisdiction, by a judge of such foreign jurisdiction.
Richmond Danville Ry. Co. v. Thouron, 134 U.S. 45, 33 L.Ed. 871, 10 S.Ct. 517; Gurnee v. Patrick County, 137 U.S. 141, 34 L.Ed. 601, 11 S.Ct. 34; 4 Hughes Federal Practice, sec. 2674; Realty Holding Co. v. Donaldson, 294 Fed. 541.
It is the duty of the court, at all times and at any time during the pendency of the suit, to remand the case when it is manifest upon the face of the affidavit or removal petition that the case has been improperly removed.
4 Hughes Federal Practice, sec. 2674; Ayres v. Wiswall, 112 U.S. 187, 28 L.Ed. 693, 5 S.Ct. 90; Cameron v. Hodges, 127 U.S. 322, 32 L.Ed. 132, 8 S.Ct. 1154; Nashua L.R. Corp. v. Boston L.R. Corp., 136 U.S. 356, 34 L.Ed. 363, 10 S.Ct. 1004; U.S.C.A., Title 28, sec. 80, note 192-193; Rosenbaum v. Bauer, 120 U.S. 450, 30 L.Ed. 743, 7 S.Ct. 633; Albright v. Teas, 106 U.S. 613, 27 L.Ed. 295, 1 S.Ct. 550; Pittsburg, C. St. L.R. Co. v. Ramsey, 22 Wall. 322, 22 L.Ed. 823; Hartog v. Memory, 116 U.S. 588, 29 L.Ed. 725, 6 S.Ct. 521; Blythe v. Hinckley, 173 U.S. 501, 43 L.Ed. 783, 19 S.Ct. 497.
It is to be recalled that in the case at bar, the petition for the removal of the eminent domain proceedings to the United States District Court alleged that the defendant, S.L. Gwin, had no interest in the property sought to be condemned by the City except as a stockholder of the foreign corporation owning the property, the real defendant in the eminent domain proceedings, and that the said defendant was made a party fraudulently for the purpose of preventing the removal of the suit to the District Court of the United States. In such a situation it is always necessary, if the allegation is traversed by a motion to remand, for the United States District Court to take evidence as well as when there is a dispute as to the citizenship of the parties or as to the amount involved, as where, as in the case at bar, the amount is dependent upon the value of the property; and this is always done, except where, in the sound legal discretion of the court, affidavits are permitted, by testimony before the court or by submission of the issue to the jury, which may be done by submission to the jury on a trial on the merits or upon a special issue before the trial on the merits.
Fielding v. Toledo O.C. Ry., 33 F.2d 993; Gibson v. Chesapeake Ohio Ry. Co., 215 Fed. 24; American Stores Co. v. Gerlach, 55 F.2d 658; General Investment Co. v. Lake Shore M. S. Ry., 260 U.S. 261, 67 L.Ed. 244, 43 S.Ct. 106; Wilson v. Republic Iron Steel Co., 257 U.S. 92, 66 L.Ed. 144, 42 S.Ct. 35; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; Burlington C.R. N.R. Co. v. Dunn, 122 U.S. 513, 30 L.Ed. 1159, 7 S.Ct. 1262; Haveron v. Bantivoglio, 13 F. (2 Ed.) 644; Bison State Bank v. Bilington, 228 F. 116, 142 C.C.A. 522; U.S. v. Sanders, 27 Fed. Cas. 950, No. 16,220; Beaudin v. Chicago M. St. P. P.R. Co., 52 F.2d 811; Deputron v. Young, 134 U.S. 241, 33 L.Ed. 923, 10 S.Ct. 539; Wetmore v. Rymer, 169 U.S. 115, 42 L.Ed. 682, 18 S.Ct. 293.
There is no provision in the dismissal or remanding statute (28 U.S.C.A. 80) for a division of activity as between the court and the judge in vacation as that some cases would necessarily have to be heard and determined by the court, while other cases might be heard and determined by the judge in vacation. Nor does the statute admit of any such construction. There is only one agency designated by the statute to perform all of the duties imposed and exercise all of the powers conferred by the statute. If the district judge has the power in vacation apart from the court to remand a suit at law, he also, as conclusively appears from the authorities hereinbefore referred to, has the power in vacation to dismiss that same suit at the consideration even of the question of remanding it. Likewise, if a district judge has the power in vacation to dismiss or remand a removed suit, he has also, as is conclusively shown by such authorities, the power in vacation to dismiss a suit commenced in the United States District Court. To impute to the statute an intention that there should be a distribution of the judicial functions provided for by it between the court and the judge in vacation, as that removed suits can be dismissed only by the court in term, and that original suits can be dismissed only by the court in term, but that removed suits can be remanded by a district judge in vacation would not be an interpretation or construction of this statute, but would be a new law made by the court and far beyond congressional contemplation.
Town of Andes v. Slauson, 130 U.S. 435, 32 L.Ed. 989, 9 S.Ct. 573; Carper v. Fitzgerald, 121 U.S. 87, 30 L.Ed. 882, 7 S.Ct. 825; McKnight v. James, 155 U.S. 685, 39 L.Ed. 310, 15 S.Ct. 248; Lambert v Barrett, 157 U.S. 697, 39 L.Ed. 865, 15 S.Ct. 722; Craig v. Hecht, 263 U.S. 255, 68 L.Ed. 293, 44 S.Ct. 103; Naeglin v. DeCordoba, 171 U.S. 638, 43 L.Ed. 315, 19 S.Ct. 35; Colvin v. City of Jacksonville, 158 U.S. 456, 15 S.Ct. 866, 39 L.Ed. 1053; U.S. v. Larkin, 208 U.S. 333, 52 L.Ed. 517, 28 S.Ct. 417; Maynard v. Hecht, 151 U.S. 324, 38 L.Ed. 179, 14 S.Ct. 353; The Bayonne, 159 U.S. 687, 40 L.Ed. 3, 16 S.Ct. 185; Muller v. Ehlers, 91 U.S. 249, 23 L.Ed. 319; Windisch v. Western Casualty Co., 29 F.2d 201; Hartog v. Memory, 116 U.S. 588, 29 L.Ed. 725, 6 S.Ct. 521; Southern Pac. Co. v. Denton, 146 U.S. 202, 36 L.Ed. 942, 13 S.Ct. 44.
The plain, clear, unambiguous, and directed phraseology of the dismissal or remanding statute (28 U.S.C.A. 80), without connecting it with the other statutes of the United States hereinbefore called to the attention of this court, and other statute in pari materia leaves no room for any implication that the judicial functions therein devolved upon the United States District Court might be exercised by a United States District Judge in vacation. The consideration of the statute in connection with the other statutes in pari materia renders such an implication wholly impossible.
1 Hughes Federal Practice, sec. 239; Emlenton Refining Co. v. Chambers, 14 F.2d 104; Federal Intermediate Credit Bank v. Mitchell, 277 U.S. 213, 72 L.Ed. 854, 48 S.Ct. 449; 2 Lewis' Sutherland Statutory Construction 2d, secs. 366 and 399; 1 Hughes Federal Practice, secs. 9, 11, 13; Henderson v. Blair, 102 Miss. 640, 59 So. 859; U.S. v. Goldenberg, 168 U.S. 95, 42 L.Ed. 394; 18 S.Ct. 3; Green v. Weller, 32 Miss. 650; Lemonius v. Mayer, 71 Miss. 514, 14 So. 33; L. N.R. Co. v. MacDonald, 79 Miss. 641, 31 So. 317; 8 Am. Eng. Ency. L. 2d pages 22-23; Henry v. West, 49 F.2d 813.
There was no warrant of law for the hearing or determination of a proceeding to remand the eminent domain suit involved in the case at bar outside of the territorial jurisdiction of the United States District Court for the Delta Division of the Northern District of Mississippi, and the order made by United States District Judge E.R. Holmes, purporting to remand said suit to the County Court of Leflore County, was for that reason, among others, coram non judice and void.
28 U.S.C.A., sec. 114 (Jud. Code, sec. 53); Primos Chemical Co. v. Fulton Steel Corp., 254 Fed. 454; Toland v. Freig, 12 Pet. 300, 9 L.Ed. 1093; 1 Hughes Federal Practice, sec. 250; 28 U.S.C.A., sec. 22; Johnson v. Manhattan Ry. Co., 289 U.S. 479, 77 L.Ed. 1331, 53 Sup. Ct. 721; 28 U.S.C.A., sec. 22 (Jud. Code 18), and sec. 22; In re Tampa Suburban R. Co., 168 U.S. 583, 42 L.Ed. 589, 18 Sup. Ct. 177; State of Ohio v. Swift Co., 260 U.S. 146, 67 L.Ed. 176, 43 Sup. Ct. 22; Ex parte Hollon Parker, 131 U.S. 221, 33 L.Ed. 123, 9 Sup. Ct. 708; Horne v. Pere Marquette R. Co., 151 Fed. 626; Ex parte Harlan, 180 Fed. 119; Harlan v. McGourin, 218 U.S. 442, 54 L.Ed. 1101, 31 Sup. Ct. 44.
The record of the eminent domain proceeding in the County Court of Leflore County did not show, when the writ of prohibition was issued, that the county court had jurisdiction to proceed in the cause.
Penoyer v. Neff, 95 U.S. 713, 24 L.Ed. 565; Lion Bonding Surety Co. v. Karatz, 262 U.S. 77, 67 L.Ed. 871, 43 Sup. Ct. 480; Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; City of Gainesville v. Brown-Crummer Inv. Co., 277 U.S. 54, 72 L.Ed. 781, 48 Sup. Ct. 454; Postal Telegraph Co. v. Thompson, 121 Miss. 379, 83 So. 612; 9 Ency. of Evidence, page 931; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Abbott v. Brown, 241 U.S. 606, 60 L.Ed. 1199, 36 Sup. Ct. 689; Dyson v. State, 26 Miss. 362; Lewis v. U.S., 116 U.S. 374, 36 L.Ed. 1013, 13 Sup. Ct. 137; Simpson v. Phillips, 164 Miss. 256, 141 So. 897; Yale v. Taylor, 63 Miss. 598; Lyons v. Steele, 86 Miss. 261, 38 So. 371; Anderson v. Hattiesburg, 131 Miss. 216, 94 So. 163; 2 Lewis' Sutherland Statutory Construction 2d, sec. 422, page 814.
The County Court of Leflore County in a proceeding in eminent domain is a court of special and limited jurisdiction. A proceeding in condemnation is in derogation of the common right. Every prerequisite essential to the jurisdiction of the court must appear affirmatively of record. The County Court was divested of jurisdiction of the eminent domain proceeding by its own judgment removing the proceeding to the United States District Court. Unless it appeared at the filing of the petition for the writ of prohibition in the case at bar affirmatively from the record of the County Court that it was authorized to resume jurisdiction of the proceeding, it was without warrant of law to proceed, and any judgment which might have been rendered by it would have been reversed on appeal and void on collateral attack. The office of a writ of prohibition is to obviate the circuity of action which such a proceeding would have entailed. It is respectfully submitted that regardless of all things else, the naked order of Judge Holmes remanding the case, shown to have been made in vacation at Yazoo City, was not sufficient to show affirmatively jurisdiction in the County Court to resume the proceeding, and, as shown in the record in the case at bar, that is the only evidence appearing in the records of the proceeding in the County Court to establish the warrant of the County Court to resume its jurisdiction. So that the record of the County Court failed to show its jurisdiction, and this fact alone was sufficient to authorize the issuance of the writ of prohibition to prevent the County Court from a threatened exercise of the jurisdiction which was not shown of its own records to be possessed by it.
Hurley v. Wells-Newton Nat. Corp., 49 F.2d 914; Blythe v. Hinckley, 173 U.S. 501, 43 L.Ed. 783, 19 Sup. Ct. 497; Defiance Water Co. v. Defiance, 191 U.S. 184, 48 L.Ed. 140, 24 Sup. Ct. 63; Stewart v. Cybur Lbr. Co., 111 Miss. 844, 72 So. 276; Thomas v. Delta L. W. Co., 258 Fed. 758; L. N.R. Co. v. Garnett, 129 Miss. 795, 93 So. 241, 132 Miss. 468, 96 So. 519; White v. Railroad Co., 64 Miss. 566, 1 So. 730.
It is contended for appellant that Section 1510 of the Code of 1930 is applicable to justices of the peace, sitting with the jury as special courts of eminent domain, but is not applicable to a suit in eminent domain in county courts. It is not denied by appellant that the Legislature had the power to make this statute applicable to all proceedings in eminent domain, in whatever court originating, and the Legislature in the adoption of the statute made no such distinction as that which appellant contends should be implied from the statute by this court. There does not seem to be any ambiguity in the statute. The language is plain and clear. It must be assumed that the statute expresses what the Legislature intended, and there is nothing in the statute which warrants the implication contended by appellant. Such an implication would not be interpretation; it would be new law.
The writ of prohibition is one of the oldest writs known to the common law, employed from time immemorial in England, and accepted generally in the United States. It has always issued out of a superior court of original jurisdiction to an inferior court to prohibit the latter from exceeding its jurisdiction or usurping a jurisdiction it did not possess, especially when irreparable injury may be anticipated from its proceeding.
Planters Ins. Co. v. Cramer, 47 Miss. 200; Crisler v. Morrison, 57 Miss. 791.
In the case at bar, if the property should be condemned, the city would take possession for the use of and to be delivered or transferred automatically to the Mississippi Power Light Company upon the tender or payment by the city to the clerk of the amount of the award, however inadequate, and they together pending the appeal from the condemnation proceeding deprive the owner of its possession, and so fortify themselves in the possession of the property, as to relegate the appellee to a different and less adequate remedy, depriving it of the right guaranteed to it by the Constitution to have compensation legally adjudicated, before surrendering possession even though such appeal might result in the dismissal of the condemnation proceeding.
Crittendon v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518.
We are unable to accord with the announcement in appellant's brief that the purpose to which writs of prohibition are applied by the provisions of Section 1510 of the Code of 1930 are exclusive, or have the effect of abolishing common law writs of prohibition. The remedy of writs of prohibition having been by this court from time to time enlarged and extended to meet the demands of justice where other remedies were found to be inadequate, the Legislature providently extended the office of the writ to the purposes enumerated in the statute, as to which under precedents it had not before that time been applicable. It not only extends the writ of prohibition to the purposes enumerated in the statute but extends for the benefit of the owner of private property the power of the court to determine, freed from former presumptions, to be tried like any other issue, the question as to whether there exists a public necessity for the condemnation.
This is a proceeding by the appellee for a writ of prohibition, directed to the appellant and the judge of the county court of Leflore county, restraining them from proceeding with an eminent domain case there pending. A temporary writ was issued under section 1510, Code of 1930, and thereafter, on the full hearing, was made final. The petition for the writ submitted to the court the two questions therefor, embraced in section 1510 of the Code, and in addition thereto set forth, in substance, that, after the appellant instituted a proceeding in the county court of Leflore county for the purpose of condemning for municipal purposes property owned by the appellee, a foreign corporation, on the petition of the appellee, and its bond therefor, the case was removed to the federal court for the Delta Division of the Northern District of Mississippi. Afterwards, by a void order of the judge of the Southern District of Mississippi, made in vacation at Yazoo City, Miss., without the territorial limits of the Northern District, the case was attempted to be remanded to the county court, which court was about to proceed with the trial therefor. The court below declined to consider the evidence as to the removal and remand of the case, but awarded the writ for other reasons. The reason assigned by the trial judge for not considering this evidence was that, in his opinion, whether or not the case had been remanded was a question for the decision of the federal court. In this he was in error, for, if the order of remand is void, it is of no efficacy, and the case is still pending in the federal court, and the county court of Leflore county is without jurisdiction thereof.
Section 22, U.S. Code, title 28, 28 U.S.C.A. section 22, provides for the designation and assignment of a district judge to sit temporarily in another district than his own. On January 7, 1935, the Honorable Nathan P. Bryan, Senior Circuit Judge for the Fifth Federal Circuit, made an order by which he designated and appointed "the Honorable Edwin R. Holmes United States District Judge for the Southern District of Mississippi, to hold the District Court of the United States for the Northern District of Mississippi, in place of or in aid of the judge of said District, and to have and exercise within said District the same powers that are vested in the judge thereof, pursuant to statutes in such case provided, for the period beginning from the date hereof, and ending December 31, 1935, both inclusive." On August 12, 1935, Judge Holmes, in vacation at Yazoo City, Miss., without the territorial limits of the Northern District, on a petition presented to him therefor, made an order remanding the case to the county court of Leflore county. The third paragraph of section 22, U.S. Code, title 28, 28 U.S.C.A. section 22 is as follows: "Any designated and assigned judge who has held court in another district than his own shall have power, notwithstanding his absence from such district and the expiration of the time limit in his designation, to decide all matters which have been submitted to him within such district, to decide motions for new trials, settle bills of exceptions, certify or authenticate narratives of testimony, or perform any other act required by law or the rules to be performed in order to prepare any case so tried by him for review in an appellate court; and his action thereon in writing filed with the clerk of the court where the trial or hearing was had shall be as valid as if such action had been taken by him within that district and within the period of his designation."
The application for the remand of the case to the county court not having been submitted to Judge Holmes within the territorial limits of the Northern District, he was without power, under the statute, to decide it. This seems clear from the statute, but any doubt relative thereto was cleared up by the Supreme Court of the United States in Frad v. Kelly, 58 S.Ct. 188, 191, 82 L.Ed. 282, decided on December 6th, 1937, wherein the court said: "When an assigned judge has presided at the trial of a cause, he is to have power, though the period of his service has expired, and though he may have returned to his own district, to perform the functions which are incidental and supplementary to the duties performed by him while present and acting in the designated district. And where a cause has been submitted to him in the designated district, after his return to his own district he may enter decrees or orders and file opinions necessary to dispose of the case, notwithstanding the termination of his period of service in the foreign district. But the act goes no farther. It clearly does not contemplate that he shall decide any matter which has not been submitted to him within the designated district." Counsel for the appellant say that under section 1510 of the Code the court below was vested with jurisdiction to determine only (1) whether the appellant is entitled to the right of eminent domain, and (2) whether there is a necessity for the taking of the particular property, or a part thereof, which it is proposed to condemn. That section simply extends the scope of the writ of prohibition in eminent domain cases, and leaves in full force the other common-law grounds therefor, one of which is a want of jurisdiction in the offending court to try the case, the trial of which is sought to be prohibited. It is true that an appeal would lie from a judgment of the county court, fixing the amount which the appellant would have to pay for the lands sought to be condemned; but such an appeal, under section 1497, Code of 1930, would not stay "the right of the applicant [the appellant here] to enter in and upon the land of the defendant [the appellee here] and to appropriate the same to public use." The appeal, therefore, would not prevent irreparable damage from being inflicted upon the landowner, even though the judgment of condemnation should be set aside by the appellate court.
When it appeared that the county court was without jurisdiction to try the case, the court below should have so held, and it would then have become unnecessary and improper for it to decide the questions presented, going to the merits of the controversy. It follows from what we have said that no error was committed in granting the writ of prohibition; but, while no point is here made thereon, it may be that the judgment rendered should have made it clear that the writ was granted only because the county court was without jurisdiction to try the case, so that it would be clear therefrom that the merits of the controversy had not been decided. If counsel for the appellant desire the judgment to be so modified, we will entertain an application therefor.
It may not be amiss to say that we have learned aliunde the record (from the clerk of the federal court) that the regular judge of the Northern Federal Court District has set aside the order of Judge Holmes remanding the case, and that there is now pending in that court another application for a remand thereof. We, of course, have not taken this fact into consideration in deciding this case.
Affirmed.
ON MOTION.
The motion to correct the judgment hereinbefore rendered, so as to conform to the intent of the opinion then rendered, is sustained, and the judgment of the court below granting the writ of prohibition will remain affirmed, though modified to read as follows:
Came on for hearing this cause, and it appearing from the evidence that the cause styled City of Greenwood, a Municipal Corporation, v. Humphrey Company, Inc., et al., No. 1181 on the general docket of the county court of Leflore county, Miss., for the restraint of the trial of which a writ of prohibition is herein prayed, has been removed to the Delta Division of the United States District Court of the Northern District of Mississippi, and that no valid order remanding it from that court to the county court of Leflore county has been made, it is ordered and adjudged that the writ of prohibition heretofore issued herein remain in force unless and until the aforesaid case be remanded from the said United States court to the county court of Leflore county, Miss.; and until such has been done the county court of Leflore county, Miss., and the judge thereof, are enjoined and commanded to take no further action in the said cause. No other question here presented by the pleadings and evidence is here decided.
It is further ordered that the city of Greenwood, Miss., pay all costs in this cause.