Ex parte Southern Telegraph Co.

SOMERYILLE, J. — The application in this case is for the writ of mandamus, to compel the Probate Court of Montgomery county to vacate an order removing a pending suit from that tribunal to the Circuit Court of the United States, which was effected on petition of the defendant under the provisions of the Act of Congress of March 3rd, 1875. — Revised Stat. U. S. (Supplement), Yol'. 1,1874-1881, pp. 173-177. The suit, so removed, was an ad guod dammim proceeding, in which the petitioner was seeking to condemn the right of way for the establishment of its line of telegraph over the road-bed of the defendant, the Louisville and Nashville Railroad Company. It is not denied that the averments of the petition of removal brought the case within the provisions of the act of Congress: Tire objection taken to the action of the court is, that the order of removal was made without hearing any evidence as to the value of the right of way, which was the matter in dispute; the petitioner offering to show tu .the court that it was less than the sum of five hundred dollars, and that the contrary averment in defendant’s petition was untrue. It was insisted that this was _ a jurisdictional fact, into which it was tlie duty of the probate court to inquire, previous to making the order. The purpose of the present application, as we have said, is to have this order of removal revoked. It is our opinion that mxmdamus will not lie for this purpose. The petitioner has an adequate remedy by -appeal, or writ of error; and this fact is fatal to the relief sought through the aid of this extraordinary writ. The order of removal was a final judgment, and from every such judgment an appeal or writ of error will lie. A judgment may be deemed final, when it completely determines the particular suit, without adjudging the rights of the parties litigant. — Freeman on Judg. (3rd Ed.) [566] §§ 16-17; § 21 b. The action of the probate court, ordering the removal, was an end of the suit, so far as its jurisdiction was concerned, until its action is reversed, or else the cause is remanded by the Federal court. And this is true, although the order may have been erroneously made, inasmuch a,s the case for removal made by the defendant’s petition is within the act. — Eemoval of Causes (Dillon); § 87. As stated by Judge Dillon, the State conrts have generally held, so far as wre can see, with but a single exception, that an appeal lies to the appellate court of the State, from an order for the removal of a cause to a Federal court, or from an order refusing such removal. — Eemoval of Causes, p. 108, note 1, and cases cited. Perhaps, the principle can be stated more accurately by saying, that an appeal will lie from an order of removal, as from a final judgment, and that the appellate State court will review an assignment of error based upon a refusal to remove, when the cause is properly before it by appeal on final judgment. In Crane v. Reeder, 28 Mich. 527, the Supreme Court of Michigan held such an order of removal to be reviewable on error; and the same conclusion has been many times reached in the Supreme Court of Louisiana, and of other States. Coons v. Judge, etc., 23 La. Ann. Rep. 29, and cases cited. A majority of this court, therefore, concur in the view, that the remedy of the petitioner, if any, is by appeal from the judgment of the probate court, which they deem to be final. The Chief Justice, without expressing any opinion on this point, concurs in the view, that the application for mcmdainus should be refused on the authority of Ex parte Mobile & Ohio R. R. Co., 63 Ala. 349, which, in his judgment, holds that the proper remedy is by application to the Federal circuit court, under the provisions of the act of Congress of March 3,1875, which authorizes the remanding of the cause to the State court, when the matter in dispute is shown to be less than five hundred dollars, exclusive of costs. His view is, that the petitioner should apply to the circuit court, and move there to have the cause remanded to the State couit, for want of jurisdiction in the former court. The application for mandarrms must be denied.