Vicksburg Waterworks Co. v. Mayor of Vicksburg

153 F. 116, 82 C.C.A. 250, 1907 U.S. App. LEXIS 4384

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 25, 1907
• Docket: No. 1,641
• Status: Published

Opinion

After stating the case as above, the opinion of the court was delivered by

PARDEE, Circuit Judge.

The appellees move to dismiss this appeal, because neither of the decrees above mentioned is final.' At the bar the appellant abandoned the appeal so far as the contempt proceedings are concerned, but insists on the errors assigned as to the first-mentioned decree. Reaving out of consideration the charge of contempt for violation of former decrees, and treating the so-called motion as a bill in equity, the object was to have the respondents made parties defendant in the bills already decreed upon, and to obtain against them a perpetual injunction restraining them from further prosecution of certain suits pending in the chancery court of Warren county, Miss. In the way of passing upon complainant’s right to such relief, the Circuit Court issued a temporary restraining order, and thereafter, on a hearing, modified the restraining order. Beyond this modified restraining order, the court has not decided as to the relief the complainant is entitled to, unless it be in the opinion and ruling found in the modifying order, to wit:

■ “And the court is further of the opinion that in cases where there is a claim for arrears due on a water bill from the consumer to the waterworks company, and the consumer tenders payment for future service under the rules and regulations of complainant waterworks company, the said waterworks company has no legal right to cut oft the water of said consumer solely for the purpose of coercing payment for prior service; but the said waterworks company must proceed to collect the past due indebtedness as other debts collected under the law.” ,

It is contended that as the rules and regulations of the complainant, as approved by final decree in the ancillary proceeding No. 79, allowed the cutting off of water from a consumer to coerce payment for prior services, and as the court has, in modifying the restraining order, expressly held to the contrary, the court has finally passed on the merits of the original motion, and the decree^ is final. To support this contention, the counsel cite French v. Shoemaker, 12 Wall. (U. S.) 86, 20 L. Ed. 270, as follows:

“Objection is made that the decree is not final, because it does not in terms dismiss tbe cross-bill; but the court is of the opinion that the statement contained in the decree that the equity of the case is with the complainant by necessary implication disposes of the cross-bill as effectually as it does of the answer filed by the appellant to the original bill of complaint. Leave, it is true, is given to either party to apply at the foot of tbe decree for such i urther order as may be necessary to the due-execution of the same, or as may be required in relation to any matter not finally determined by it: but it is quite apparent that the reservation was superadded to the decree as a precaution, and not because the court did not regard the'whole issue between the parties as determined by the decree. Such was doubtless the view of the Chief Justice who passed the decree, as the application for the appeal was made to him at the same term, and was immediately granted without objection.”

Again:

“Unquestionably, the whole law of the case before the court was settled by the Chief Justice m ’’’«t decide, and as nothing remains lo be done, unless a new application liutil bft/Afáde at the foot of the decree, the court is of the ojfinion that the decree y.i a final one, as it has conclusively settled all the legal rights of the pui’ip'.uUiVolved in the pleadings.” Forgay v. Conrad, 6 How. (U. S.) 202, 12 L. Ed. 40; Thomson v. Dean, 7 Wall. (U. S.) 342, 19 L. Ed. 94; Beebe v. Russell, 19 How. (U. S.) 283, 15 L. Ed. 668, supra. Also, section 503, Foster’s Fed. Pr.; ira. ft ¡Eng. Knc. PI. & Pr. vol. 2, pp. 66, 72, to like purport.

Anú oft Hi ,ir, el say:

“No dourer distinction between an interlocutory or administrative order, and a "iiiiii decree, can be found, than that given in the above authorities. An evuni'jntion of the final decree in this cause, on page 666 of the record, shows dourly chat the court so understood it to be a final decree, and this is a fact •ft» lift considered, for it fixed the rights of the parties as set up in the pleadftir; and taxed tiie cost against complainants lappellants here]. As far .’u che pleadings in this cause went, there was no tiling else for the court to decide. The matter was at an end. There was no other report to court to fie had, no other facts to hear. The rights of the parties were fully heard and .-finally adjudicated by this decree, and the complainant was taxed with the / cost, as above stated, showing that the court understood that this decree was ( final on the pleadings presented in this cause.”

)

To all this, we say that the authorities cited, though unquestionably stating correct rules, are not controlling on the facts shown in this record. No matter what the judge may have thought he was deciding, and although he gave a judgment for costs, he did not, in the decree in question, grant or dismiss the motion bringing the defendants into court, and he has left for future decision the main ques-:ion presented on the motion, i. e., whether the respondents shall be in any wise perpetually restrained from further prosecution of the mits in the chancery court of Warren county, Miss., and pending the decision of that question they are temporarily restrained from such ¡prosecution; true, not to the extent desired by the complainant, because the judge in modifying the original restraining order gave a construction temporary, not final, of certain rules of the company relating to the cutting off of water from nonpaying consumers.

It frequently occurs that all the law of a case is settled by the ruling on demurrer; but, unless the ruling is followed by a dismissal of the bill, there is no final decree. Here, the court’s ruling goes only to. a part of the case, and the bill or motion is not dismissed. The case presented is anomalous, if not unique, involving interesting questions of practice; but as yet no final decree has been rendered, and without a final decree our jurisdiction to review does not.attach.

Appeal dismissed.