United States ex rel. Strickley v. Marshall

ADAMS, District Judge, after making the foregoing statement, delivered the opinion of the-court. Section 3588 of the Revised Statutes of Utah (1898) provides that “the right of eminent domain may be exercised in behalf of the following public uses: * * * (6) * * * Tramways * * * to facilitate the milling, smelting or other reduction of ores, or the working of mines.” It is conceded that the mining company’s suit to condemn the premises in question was for “tramway” purposes, within the meaning of the statute just quoted. The mining company first sought to secure the use of the tramway by interposing its claim thereto as an equitable defense to the ejectment suit; but such defenses to an action at law are not permissible in the federal courts, and the particular defense undertaken to be made by the mining company in the ejectment suit was not sustained by the trial court or by this court. Highland Boy Gold Mining Company v. Strickley (C. C. A.) 116 Fed. 852. Failing in that effort the mining company immediately after the adverse judgment in the trial court resorted to its action under the statute, supra, to condemn the right of way. Section 3597 of the same statute provides that in suits for condemnation “the plaintiff may move the court * * * at any time after the commencement of suit * * * for an order permitting the plaintiff to occupy the premises sought to be condemned, pending the action. * * * The court * * * shall take proof * * * of the value of the premises sought to be condemned * * * and of the reasons for requiring a speedy occupation, and shall grant or refuse the motion according to the equity of the case. * * * If the motion is granted, the court * * * shall require the plaintiff to execute and file in court a bond to the defendant, with sureties to be approved by the court * * * conditioned to pay the adjudged value of the premises and all damages in case the property is condemned, and to pay all damages arising from occupation before judgment in case the premises are not condemned, and all costs adjudged to the defendant in the action.” When the mandate of this court went down, the mining company was prosecuting, in due course its suit for condemnation, and was in possession of the premises sought to be condemned, after having [430] given bond as provided by the statute just quoted. Such was the situation when the trial court, on motion of the mining company, stayed the issue of the order of restitution to enforce the judgment in the ejectment suit, and it is to compel the trial court to award such an order that this proceeding by mandamus was resorted to. The motion to stay the issuance of the order of restitution was treated by the parties as the equivalent of a bill in equity for that purpose and must be so treated here. If the court had jurisdiction to grant the relief prayed for by bill in equity, its judgment therein would not be subject to review by writ of mandamus. If the judgment was wrong the remedy was by appeal. Ex parte Flippin, 94 U. S. 348, 24 L. Ed. 194; Ex parte Loring, 94 U. S. 418, 24 L. Ed. 165; In re Sanford Fork & Tool Co., 160 U. S. 247, 255, 16 Sup. Ct. 291, 40 L. Ed. 414; Kimberlin v. Commission to Five Civilized Tribes, 44 C. C. A. 109, 104 Fed. 653. We entertain no doubt that the trial court would have had juris-, diction by bill in equity to consider and adjudge the question presented by the motion to stay the writ of restitution. Ordinarily the mandate of this court requiring the enforcement of a judgment of the trial court must be specifically obeyed, but when new rights have intervened after the original judgment and pending an appeal, like, for example, accord and satisfaction, payment of the judgment debt, adjudication in bankruptcy, and discharge of the debtor from the judgment debt, such rights, if of equitable cognizance, not only justify, but require, the trial court to-afford relief, either by bill in equity, or, possibly, by motion to stay the enforcement o.f the judgment itself, if the same is necessary to prevent irreparable injury. This is not only true under general principles of equity, but is recognized in the language of the mandate involved in this case, wherein the trial court is directed to take such proceedings “as according to right and justice and the laws of the United States ought to be had.” Such a mandate certainly cannot stand in the way of affording relief of an equitable character. Applying the foregoing principles to the case under consideration, we are of opinion that the institution of the proceedings in the state court to condemn the right of way, after the mining company had failed to secure an adjudication of such right in the ejectment suit, and the giving of the bond which by statute conferred the right of occupancy pending the action for condemnation, created such a new right as entitled the mining company to invoke the jurisdiction of the trial court to stay its judgment, the enforcement of which would necessarily interfere with the enjoyment if not utterly destroy the right itself, until such new right might be adjudicated in the proper forum. The trial court, therefore, having jurisdiction to consider and determine the question presented by the bill in equity, or its equivalent motion to stay the order of restitution, its action could only be reviewed by appeal. The effort to do so by mandamus is unavailing. We find no occasion to express an opinion on the question argued at the bar as to whether the judgment in the ejectment suit is an estoppel of record of the right of the mining company to litigate [431] the issues presented in the condemnation suit. The petitioner may properly present that question to the state court in the trial of the condemnation suit. It results from the foregoing that the motion for a peremptory writ of mandamus must be denied, and the petition .therefor is dismissed.