FRANK, Circuit Judge.
On December 17, 1940, the Secretary of War, in a letter to the Attorney General, requested the institution of proceedings to condemn appellant's lands, stating that such acquisition was necessary for military purposes under the Act of July 2, 1940, 54 Stat. 712, 41 U.S.C.A. preceding section 1. Respondent filed its petition in the court below to acquire the lands on December 19, 1940, attaching the Secretary's letter as an exhibit to the petition. At the same time, it filed a declaration of taking (signed by the Secretary), pursuant to the Act of February 26, 1931, 40 U.S.C.A. § 258a, and deposited in court the estimated compensation of $111,809.40. Judgment was entered the next day, December 20, 1940, declaring that fee simple title had vested in the United States and that the right to just compensation had vested in the persons entitled thereto, and directing immediate delivery of possession to respondent.
Appellant, by answer filed September 11, 1941, asked dismissal of the proceeding on the ground that, rather than for public use, the land was being taken for the private use of the Republic Aviation Corporation, the answer alleging that the United States had leased the land to that company for five years with an option in the company to purchase at the expiration of the lease. The answer also alleged that the deposit was so small as to violate appellant's right to just compensation, and that the proceeding was not authorized by law. An amended petition was then filed by respondent, alleging the claims of ownership with greater particularity. Appellant answered this petition three days later; this answer, repeating the defenses contained in the original answer, alleged that the court had no jurisdiction and that the petition did not state facts sufficient to constitute a cause of action. Appellant subsequently moved for a bill of particulars seeking inter alia, details as to the arrangement with Republic Aviation Corporation.
Trial then ensued on the issues other than compensation. Respondent's evidence consisted of the Secretary's letter and of the declaration of taking signed by him. The court excluded appellant's offered evidence relating to negotiations between appellant and Republic and Republic Aviation Corporation concerning purchase of the land and to the alleged lease of the land to the company by the United States. On January 20, 1942, a judgment of condemnation was entered. Subsequently, on motion of respondent, the court entered an order directing that compensation be determined by the court rather than by commissioners.
Appellant appeals from the judgment of January 20, 1942, and from the several orders above mentioned.
1. A question is raised as to our jurisdiction to entertain the appeal from the judgment of condemnation entered, on January 20, 1942, after a trial upon issues other than that of compensation, but when compensation still remained to be determined. Our appellate jurisdiction is limited
"Final" is not a clear one-purpose word; it is slithery, tricky. It does not have a meaning constant in all contexts. What was said as to "final" orders a half century ago still holds: "The cases, it must be conceded, are not altogether harmonious."
In Latta v. Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169, a decree in a suit for an accounting was held not to be appealable where it determined that a partnership existed and that one partner was entitled to a share of the profits but referred the case to a master to state an account. Appellate jurisdiction was denied, in Clark v. Roller, 199 U.S. 541, 26 S.Ct. 141, 50 L.Ed. 300, of an appeal from a decree confirming the report of commissioners in a partition sale, ordering a conveyance and sale, with such distribution as might be ordered when the sale was confirmed. A similar decision was made in Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L. Ed. 864, where, in a suit to cancel deeds to growing timber and to enjoin defendant from cutting the same, the decree adjudged defendant to have the right of possession, but appointed a master to take further evidence as the identity of trees covered by the deeds. In Keystone Manganese & Iron Co. v. Martin, 132 U.S. 91, 10 S.Ct. 32, 33 L.Ed. 275, a decree of injunction restraining the defendant from trespassing on plaintiff's land and from taking mineral ore therefrom was held not appealable where the decree also provided that defendant account for ore already taken. In Smith v. Vulcan Iron Works, 165 U.S. 518, 17 S.Ct. 407, 41 L.Ed. 810, a decree adjudged a patent valid and infringed, and granted an injunction; but also ordered an accounting. That decree was appealable under the explicit terms of what is now 28 U.S.C.A. § 227, permitting an appeal from an interlocutory order granting an injunction; the Court held that, on such an appeal, the merits could be considered; even that ruling was limited in Ex parte National Enameling & Stamping Co., 201 U.S. 156, 162-163, 26 S.Ct. 404, 50 L.Ed. 707, which case was later approved in Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 90, 42 S.Ct. 196, 66 L.Ed. 475 (citing Keystone Manganese & Iron Co. v. Martin, supra). The admiralty cases, where appeals from decrees are allowed, although damages remain to be determined, are founded on the express provisions of 28 U.S.C.A. § 227 as to interlocutory appeals in admiralty.
There is, however, a different category of cases. In Forgay v. Conrad, 6 How. 201, 204, 12 L.Ed. 404, a decree set aside certain deeds as fraudulent and void; it ordered that certain lands and slaves should be delivered to the complainant, that one of the defendants should pay a certain sum of money to the complainant and that the complainant should have execution for these matters; it also provided that a master should take an account of the profits of the lands and slaves and of certain monies and notes. The court held that this decree was appealable. It said: "If these appellants, therefore, must wait until the accounts are reported by the master and confirmed by the court, they will be subjected to irreparable injury. For the
Cf. Gulf Refining Co. v. United States, 269 U.S. 125, 136, 46 S.Ct. 52, 70 L.Ed. 195; Lewisburg Bank v. Sheffey, 140 U.S. 445, 452, 11 S.Ct. 755, 35 L.Ed. 493; Winthrop Iron Co. v. Meeker, 109 U.S. 180, 3 S.Ct. 111, 27 L.Ed. 898; City of Des Moines v. Des Moines Water Co., 8 Cir., 230 F. 570, 573; Chase v. Driver, 8 Cir., 92 F. 780; Mayer v. White, 8 Cir., 12 F.2d 710, 714; Rector v. United States, 8 Cir., 20 F.2d 845, 860, 861; Marian Coal Co. v. Peale, 3 Cir., 204 F. 161, 163, 164; City of Eau Claire v. Payson, 7 Cir., 107 F. 552.
The decisions as to the appealability of judgments of condemnation seem, at first glance, to preclude our retaining jurisdiction here: In Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194, and Southern Ry. Co. v. Postal Tel. Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355, both condemnation suits, appellate jurisdiction was denied where damages remained to be assessed. It was similarly denied in Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 37 S.Ct. 295, 61 L.Ed. 702, on writ of error to a State court, although in that State an immediate appeal was allowed.
However, in those cases, under the applicable statutes, there could be and there was no judgment as to title and possession until after the damages had been determined.
Oakland v. United States, 9 Cir., 124 F.2d 959, involved an appeal from a judgment under the same statutory provisions. The judgment there, however, was not after a trial but was ex parte, like the order entered in the instant case on December 20, 1940, before an answer was filed by appellant, and which has not been appealed. The judgment from which an appeal was taken in the Oakland case
2. Appellant has also appealed from an order made on the motion of the United States, directing that compensation be determined by the court rather than by commissioners. As no compensation had been determined when the appeal was taken, that order is patently interlocutory and we, therefore, dismiss the appeal therefrom.
3. There was no error in denying appellant the bill of particulars and in excluding the offered proof. The alleged errors related to appellant's efforts to show that the Secretary of War was not acting in good faith and was abusing his powers in that, although, in accordance with the Act, he had stated that the taking of the land was necessary in the interest of national defense, he was proposing, pursuant to statute, to have the United States lease the land, with an option to purchase, to Republic Aviation Corporation, which is engaged in manufacturing airplanes for the United States. The decision of the Secretary of War is not open to judicial inquiry.
4. There was no error in the denial of a trial by jury. The conformity provisions of the Act permit procedures which are allowed in comparable cases in the courts of New York, and there jury trials are not required. New York Condemnation Law, § 13, Consol.Laws, c. 73. Nor is trial by jury compelled by the provision of the Seventh Amendment that "the right of trial by jury shall be preserved." In Crane v. Hahlo, 258 U.S. 142, 147, 42 S.Ct. 214, 216, 66 L.Ed. 514, it was said that the trial of condemnation cases by a "non-judicial tribunal" was "common in England and in this country prior to the adoption of the federal
Moreover, if there was error in the denial of the jury trial here, it was harmless error: Appellant not only does not want a jury with respect to the issue of damages but insists that damages shall be ascertained by commissioners. The only other issues in the case concerned the validity of the taking; and our previous discussions to show that, had there been a jury trial of those issues, the judge would have been required to direct a verdict. There is no constitutional right to have twelve men sit idle and functionless in a jury-box.
The matter is further complicated by the unsettled character of the escapes from the finality doctrine through recourse to the so-called extraordinary remedies. See Crick, loc. cit., 553-557; cf. Ex parte Edelstein, 2 Cir., 30 F.2d 636.
For a litigant, the uncertainty as to "finality" is dangerous because, if an order is appealable, a delay in appealing therefrom may be fatal; that induces many appeals which are held to be premature. It has been suggested that the statute be amended so that, in certain instances, appeals will be optional; some orders would be sufficiently final to be at once appealable but not so final as to preclude postponement of appeal until the close of all phases of the suit. Cf. Finality of Judgment in Appeals from Federal District Courts, 49 Yale L.J. (1940) 1476, 1482, 1483; 3 Moore, Federal Practice, 1941 Supplement, p. 99, note 34.
We do not here decide that the judgment of December 20, 1940 was appealable.