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Opinion of the Court.
damages" among several admissible modes is that of causing the amount to be assessed by viewers subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial.” This is the rule adopted in numerous other cases. See Huling v. Kaw Valley Railway & Improvement Co., supra; Lent v. Tillson, 140 U. S. 316, and Winona & St. Peter Land Co. v. Minnesota, supra. It is the mode of procedure adopted by the Wyoming Statute. Section 2536 provides for an appeal to the District Court of the County within thirty days after the decision of the Board of County Commissioners establishing the road.
Plaintiff in error does not deny the soundness of the rule, but questions its applicability to the present case on the ground that the procedure established by the Statute affords no means of ascertaining at what time the final decision of the Board of County Commissioners establishing the road is made, and consequently when the time to appeal to the District Court, as provided by Section 2536, begins to run. It is urged that notwithstanding the fact that the Board of County Commissioners may lawfully meet and reach a final decision, and notwithstanding the fact that the Board in the present case kept minutes and recorded its action in making final decision to establish the road in question, nevertheless the law provides for no public record from which the decision of the Board may be ascertained and claimants are denied any legal means of ascertaining whether in fact such action has been taken.
In making this contention, plaintiff in error overlooks the plain effect of Sections 1413 and 1424 of the Compiled Statutes of Wyoming of 1920 which were in force at the time of the proceedings in question. By Section 1413 it is provided that all meetings of the Board of County Commissioners are public meetings, and Section 1424 requires that all proceedings of the Board of County
Opinion of the Court.
Commissioners shall be published in a newspaper of the County and the County Clerk is required to furnish such paper with a copy of the proceedings of each meeting for that purpose, within forty-eight hours after adjournment. No contention was made in the courts below or here that the requirements of these sections of the law were not complied with, and there is no basis for such contention in the assignments of error.
Having in mind the character of the procedure in condemnation proceedings and the numerous decisions of this Court, to which reference has been made, establishing what is a due procedure in this class of cases, we have no hesitancy in holding that the method provided by Section 1424 of giving notice of the final decision of the Board of County Commissioners establishing the road is reasonably adapted to the other procedure laid down in the Statute, that it affords reasonable opportunity to claimants to ascertain the fact and that it satisfies all constitutional requirements. A land owner who had notice of the initiation of the proceedings for the opening of the road published in accordance with the Statute, which notice as we have seen under the decisions of this Court is constitutionally sufficient, would have experienced no practical difficulty in ascertaining when the Board of County Commissioners took final action, and by filing notice of appeal to the District Court within thirty days thereafter, he could have secured the full hearing to which he is constitutionally entitled. Having failed to adopt such procedure, the plaintiff cannot complain of a denial of due process of law. The judgment of the Supreme Court of Wyoming is
NORTH CAROLINA RAILROADCOMPANY
υ. STORY, SHERIFF OF ALAMANCE COUNTY, NORTH CAROLINA, ET AL.
CERTIORARI TO THE SUPREME COURT OF THE STATE OF
No. 322. Argued April 14, 1925.—Decided May 25, 1925.
1. A judgment of a state supreme court affirming the refusal of a
lower court to continue a temporary restraining order and to grant a permanent injunction on the petition and answer, and leaving nothing for the lower court to do but dismiss the petition, held a final judgment and reviewable by certiorari under Jud. Code $ 237, as
amended September 6, 1916. P. 291. 2. An appellate court, upon an appeal from a temporary or inter
locutory order or decree, has power, under general equity practice, to examine the merits, if sufficiently shown by the pleadings and record, and, upon deciding them for the defendant, to dismiss the
bill. Id. 3. A judgment not appealed from, however erroneous, is res judicata.
P. 292. 4. Section 206 (g) of the Transportation Act of 1920, providing: “No execution or process
shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under Federal control," does not prevent judgments in the cases specified but protects the carrier's property from execution
under them. Id. 5. A decision by a state supreme court that a judgment recovered
against a carrier for personal injuries suffered while its railroad was under federal control conclusively established the right to recover a second judgment in an action on the first, is not a decision that the first judgment established plaintiff's right to levy execution on the carrier's property notwithstanding $ 206 (g) of the Transporta
tion Act. P. 293. 6. The reasoning and opinion of a court are not res judicata unless
the subject matter be definitely disposed by the decree. P. 294. 187 N. C. 184, reversed.
Opinion of the Court.
CERTIORARI to a decree of the Supreme Court of North Carolina affirming a decree which refused relief by injunction against the levy upon the Railroad's property of an execution to satisfy a judgment based on another judgment, which last had been recovered in an action against the railroad for personal injuries. See also 184 N. C. 442.
Mr. S. R. Prince, with whom Messrs. H. O'B. Cooper, W. M. Hendren and L. E. Jeffries were on the briefs, for petitioner.
Mr. Chapin Brown, with whom Messrs. Robert C. Strudwick and William P. Bynum were on the briefs, for respondents.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
The questions in this case are two. One is of our jurisdiction to issue the writ of certiorari to review a judgment of the Supreme Court of North Carolina, and turns on its finality. The second is whether a judgment of that court against the North Carolina Railroad Company for injuries caused by the operation of the road by the United States will bar a suit by the Company to enjoin the execution of such judgment against its property under $ 206 (g) of the Transportation Act of 1920 (c. 91, 41 Stat. 456, 462). The relevant part of the section reads as follows:
“No execution or process . . . shall be levied upon the property of any carrier where the cause of action on account of which the judgment was obtained grew out of the possession, use, control, or operation of any railroad or system of transportation by the President under Federal control.”
Maggie Barber was killed in North Carolina by a collision between a locomotive of the Southern Railway
Opinion of the Court.
Company and an automobile in which she was riding. It was on the line of the North Carolina Railroad Company, then under a long lease to the Southern Railway Company. King, the administrator of the deceased, sued the North Carolina Company, in the Superior Court of Guilford County, charging negligence by defendant's lessee. The defendant by answer denied that the death was caused by the negligence of its lessee or its employees, because the railroad was then being operated by the Director General of Railroads. The jury returned a verdict for $2,500 and judgment was entered. An appeal was attempted but was not perfected, due, it is said, to the illness of counsel. Without seeking execution, the administrator instituted a second suit, based on the first judgment, averring that it was unpaid. The Company by answer set up $ 206 (g), above quoted, as a defense, and averred that the second suit was brought to evade the section. The plaintiff demurred, on the ground that the first judgment had become res judicata. The court rendered judgment with interest and further costs. The Company appealed, and the judgment was affirmed. 184 N. C. 442. The Company opposed execution in the lower court, and excepted to the order directing it to Story, the Sheriff of Alamance County, to be levied upon certain real estate of the Company in that county.
The Company then brought the present action based on $ 206 (g) in the Superior Court of Guilford County against Story and the administrator, seeking to enjoin permanently the execution. The defendants answering admitted the execution but pleaded the second judgment as res judicata. The Company secured a temporary restraining order and a rule on the defendants to show cause why the temporary order should not be continued and made permanent. On hearing, the motion to continue the order and make it permanent was denied. The court, pending plaintiff's appeal, stayed the execution