MISSOURI & KANSAS INTERURBAN RAILWAY COMPANY
v.
CITY OF OLATHE, KANSAS
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A railway company sought damages from the City of Olathe for repealing an ordinance that had authorized the use of city streets for an interurban railway line. The Supreme Court dismissed the case for lack of jurisdiction because the state courts' judgment sustaining a demurrer did not finally determine the cause of action—the suit remained pending in the lower court for further proceedings such as amendment of the petition or entry of final judgment.
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Memorandum opinion by direction of the court.
By Mr. Justice Hughes.-
Motion to dismiss. This suit was. brought by the-Railway Company, plaintiff in error, against the City of’ Olathe, Kansas, in the district court of Johnson County, in that State, to recover damages caused by the repeal of an ordinance authorizing the use of certain streets of the city for an interurban railway and by the consequent prevention, until the passage of a new ordinance, of its construction and operation. The defendant demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action. The District Court sustained the demurrer, and its decision was affirmed by the Supreme Court of the State. And this writ of error is brought.
The record fails to disclose a fina} judgment. The Supreme Court affirmed the judgment of the lower court, but this merely sustained the demurrer without dismissing the suit. The Supreme Court did not direct its dismissal, but the cause was left' standing in the court, below for such proceedings as might be had according to law after the decision on the demurrer, either by amendment of the petition or entry of final judgment.
As.it does not appear from the record that the judgment sought to be reviewed was one which finally determined the cause, this court is without jurisdiction. Miners’ Bank of Dubuque v. United States, 5 How. 213; McComb, Executor, v. Commissioners of Knox County, 91 U. S. 1; Great Western Telegraph Company v. Burnham, 162 U. S. 339; Haseltine v. Central Bank of Springfield, 183 U. S. 130.
Dismissed.
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Citator
Cited By (23 total)
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La. Navigation Co. v. Oyster Comm'n of La., 226 U.S. 99 (U.S. 1912)…s rendered was sued out. But as the judgment of the court below on its face is not a final one, it follows that a motion to dismiss must prevail. Haseltine v. Bank, 183 U. S. 130; Schlosser v. Hemphill, 198 U. S. 173; Missouri &c. Ry. Co. v. Olathe, 222 U. S. 185. The contention, however, is that the judgment below is final for the purpose of review by this court, because when the opinion of'the Supreme Court of Louisiana is carefully weighed it will be found that that court practically finally: disposed ad…
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Jung v. K. & D. Mining Co., Inc., 356 U.S. 335 (U.S. 1958)…“that all relief be denied” (Rule 58 of Federal Rules of Civil Procedure) but left the suit pending for further proceedings “either by amendment of the [complaint] or entry of a final judgment.” Missouri & Kansas Interurban R. Co. v. City of Olathe, 222 U. S. 185, 186. The situation did “not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after expiration of the time allowed for amendment is required to make a final disposition of the cause.” Cory Bros. & C…
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Carondelet Canal & Navigation Co. v. State of La., 233 U.S. 362 (U.S. 1914)…ht or might not make a better case. This rule was again expressed in Schlosser v. Hemphill, 198 U. S. 173, in a case where a right to amend the pleadings existed and a new case could have been made. In M. & K. Interurban Company v. City of Olathe, 222 U. S. 185, a demurrer was sustained to the plaintiff’s pleadings in the trial court and the Supreme Court, but the latter court did not direct a dismissal of the suit but left it stand in the court below. We held that the judgment sought to be reviewed was no…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haseltine v. Cent. Bank OF Springfield, 183 U.S. 130 (U.S. 1901)
- Great W. Tel. Co. v. Burnham, 162 U.S. 339 (U.S. 1896)
- McComb v. Comm'rs of Knox Cnty., 91 U.S. 1 (U.S. 1875)
- Miners' Bank of Dubuque v. The United States ex rel. James Grant, 5 How. 213 (U.S. 1847)