The amount so until the plaintiff had notice of the application and could be heard thereon. ordered to be paid was afterwards received from the registry of the court by the petitioner. The application for the rest of the fund was subsequently heard, the plaintiff in the suit appearing to resist, and upon full consideration it was expressly adjudged by the court that the litigation in the case was not ended, and that "neither by the terms of the decree nor the right and justice of the case was he [petitioner] entitled to the same [the money] until he had earned it by prosecuting said suit to a final decree as to all the defendants therein." The application for the remainder of the money was consequently denied, and the fund was left "in the registry of the court to be disposed of or applied hereafter as the rights of the parties and justice of the case may require.' Certainly upon this return the petitioner is not entitled to the writ he asks. ard anders, matters and things as may be secessary to enable your petitioner Habes, an attorney at law practicing district courts of the United wach district) to withdraw from the dad court the sum of five hunbearing to him." The petition which is sworn to by the petitioner, to and prior to May 3, 1882, there the Circuit Court of the United 12 District of Oregon a suit in equity are of a mortgage in which - minager, was plaintiff, and H. W. B. McCallister, defendants, theaintiff therein "recovered in said decree as against the defendants, a certain order of sale, wherein and 2 ordered, adjudged and decreed tants should pay to the fa certain sum of money, and interest ped, and also the costs and disthe suit to be taxed, including the full amount due from the to the complainant as an fee to the attorney of the complaindefault of such payment being lands in said decree and order of and described, be sold." further states "that your peti the attorney of the plaintiff, by ex " The rule heretofore granted is discharged, with costs. Ex Parte: and by the express terms and In the Matter of DAYTON S. MORGAN AND of said decree and order of sale, was and unconditional owner of the fee recovered therein and thereby as C. ASHLEY SMITH, Petitioners. (See S. C., Reporter's ed., 174-176.) trolled by. It is then stated that a sale Mandamus-discretion of inferior courts not con- 1. A writ of mandamus may be used to require an to be due to your petitioner various orders and decrees 2. The judgment of an inferior court upon a motion to amend its original judgment in a cause cannot be reviewed by mandamus. [No. 10. Orig.] Argued Mar. 30, 31, 1885. Decided Apr. 6, 1885. NOTE.-Mandamus-control of inferior tribunaldiscretion-classification. Three distinct classes of cases arise: 1. Where the decision by the lower tribunal of the question to do or not to do a certain act in itself involves discretion. 2. Where the method of doing the act alone involves a question of discretion, or, the duty to act being clear, the performance of this act requires the exercise of discretion. 3. Where the act is purely ministerial, involving no question of discretion at any stage. In the first class of cases a mandamus will never be granted. Ex parte Morgan, supra; and cases cited. In the second class of cases the writ will issue, to compel action but not to control the method of action or its discretion. For instance, a lower court may, in a proper case, be ordered to render a judg ment, but it will be left to its discretion as to what judgment it will render. Ex parte Bradstreet, 32 101 Mass., 488; People v. Common Council of Troy, U.S. (7 Pet.), 634; East Boston Ferry Co. v. Boston, 78 N. Y., 33; People v. Auditors of Elmira, 82 N. Y., 80; Commonwealth v. Henry, 49 Pa. St., 530. In the third class of cases mandamus will, in a proper case, be granted. Board of Liquidation v. McComb, 92 U. S., 531, bk. 23, 623. For definition of ministerial act in this connection, see Mississippi v. Johnson, 71 U. S. (4 Wall.), 498, 8.7 Wall.), 347, bk. 18. bk. 18, 440; approve in Gaines v. Thompson, 74 U. For full citation of authorities see M'Cluny v. Silliman, 15 U. S. (2 Wh.), 363, note. As to the use of the writ of injunction in related cases, see Mississippi v. Johnson, 71 U. S. (4 Wall.). 475, XVIII., 437, note. [174] U. S., [bk. L. ed. 165]; Ex pa ON petition for a writ of mandamusse suff-ing, 94, 5, 41, 103, 24, 26, 1. 10.137. ciently appear in the opinion of the court. Mr. Chief Justice Waite delivered the opin- This is an application for a writ of mandamus requiring the Circuit Court of the United States for the District of Indiana to amend a judgment entered January 20, 1883, in a cause wherein the relators were plaintiffs and Frederick Eggers defendant, "so as to conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial of said cause.' The suit was ejectment to recover the possession of "all of the north part of lot 2, in sec. 36, T. 38, N. R. 10 W. of the second principal meridian, which lies west of the track of the Lake Shore and Michigan Southern Railroad and If a clerk in performing the ministerial a of recording a judgment has committed an ror, the court may on motion at the proper tir correct it, or it may do so in a proper case up its own suggestion without waiting for the pa ties. Here the plaintiffs, believing that t judgment as recorded did not conform to t finding, moved the court to amend it in th particular. This motion the court entertaine but, being of the opinion that the judgme had been correctly recorded, refused the amen ment which was asked. In this the court act judicially, and its judgment on the motion c no more be reviewed by mandamus than th which was originally entered in the cause. The writ is denied with costs. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. Cited.-116 U. S., 402. north of a line parallel with the north line of EAST ALABAMA RAILWAY COMPANY said lot 2, and 753 feet south therefrom." The judgment entry, which includes the only finding in the case, is as follows: Piff. in Err., v. "And the court, having heard the evidence JOHN DOE, ex dem. DANIEL W. VISSCHE and being fully advised, finds for the plaint- creed." ET AL. (See S. C. Reporter's ed., 340-355.) Railroads-sale of right of way void if pu chaser has not the franchise-ejectment—estop pel. *Various owners of lands in Alabama granted to railroad corporation of that State" and its assigns in 1860, a right of way through the lands to mak and run a railroad, the corporation having a frau de-chise to do so and to take tolls; and it obtained a lik right, as to other land, by statutory proceeding. I graded a part of the line. V., a judgment credito of the corporation, in 1867 levied an execution of iff deeded it to him, and he took possession of the the right of way, and it was sold to V., and the sher road-bed. In 1870 he contracted with another rail road corporation to complete the grading of the paid, to transfer to it all his title to the franchise line of road for so much per mile, and, on beins right of way and property of the old corporation He completed the work, and was not paid in full but gave possession of the road in 1871 to the cor poration, and its franchises and road and property passed in 1880 to another corporation, the defend ant, against whom V. brought an action of eject ment to recover the road-bed: Held, After this entry the petitioner moved the court to amend and reform the judgment so that it would "conform to the complaint in said court and to the finding or verdict"; but the court, on full consideration, decided that the finding and judgment were not separate and distinct, and that the meaning was clear. The entry was to be construed as finding and adjudging that the plaintiffs were only entitled to recover the possession of so much of the premises sued for as lies south of the fence indicated. For this reason the motion was denied. It is an elementary rule that a writ of mandamus may be used to require an inferior court to decide a matter within its jurisdiction and pending before it for judicial determination, but not to control the decision. Ex parte Flippin, 94 U. S., 350 [bk. 24, L. ed., 195]; Ex parte R. Co., 101 U. S., 720 [bk. 25, L. ed., 875]; Ex parte Burtis, 103 0.5, 238 [bk. 26, L. ed.,392]. Here a judgment has been rendered and entered of record by the circuit court in a suit within its jurisdiction. The judgment is the act of the court. It is recorded ordinarily by the clerk as the ministerial officer of the court, but his recording is, in legal effect, the act of the court, and subject to its judicial control. The clerk records the judgments of the court, but does not thereby render the judgments. If there is error in the judgment as rendered, it cannot be corrected by mandamus, but resort must be had to a writ of error or an appeal. Ex parte Lor (1) The right of way could not be sold on execu tion or otherwise to a purchaser who did not own the franchise. (2) There was nothing in the contract to estop the defendant from disputing the right of V. to re- (3) V could not recover. Submitted Mar. 20, 1885. Decided Apr. 13, 1885. IN ERROR to the Circuit Court of the Unit ed States for the Middle District of Alabama. The history and facts appear in the opinion of the court. Messrs. Edward Patterson and Harry C. Semple, for plaintiff in error. Messrs. Samuel P. Rice and John M. Chilton, for defendants in error. Mr. Justice Blatchford delivered the opinion of the court: * Head notes by Mr. Justice BLATCHFORD. Vember, 1880, the defendants in error | Mary F. McLemore, for and in consideration of "Mary F. McLemore." As to the excepted case, which related to a section of land one mile square in Chambers County, through which the road-bed sued for runs, in that county, the Company caused the same character of rights and right of way through that section of land as was conveyed by the deeds referred to to be condemned for hay? Milemore to Opelika and Oxford sessed was finally paid to the owner. In 1860 its use under statute authority, and the sum as R. R. Co. Ciambers County: re made this 31st day of Aurear of our Lord one thousand end and exty, between Mary Mcfram bers County, of the one part, - as an Oxford R. R. Company, at part, witnesseth: That the said the Company employed engineers who laid out [343] [344] [345] thus staked out, but no other work was done | cuit Court for said county, on the 8th day The Company became embarrassed for want One Lockett and the firm of D. W. & J. G. Visscher were contractors, to whom the Company was indebted for work on the line. Lockett recovered one judgment and the Visschers another against the Company, October 26, 1866, in a court of the State, by service of process on Richards, as president, the former for $14,457.21, and the latter for $12,383.83. An execution was issued on each judgment to the sheriff of Chambers County, November 7, 1866, and levied on that day, according to the return on each writ, on a house and lot, and also on "the right of way to the Opelika and Oxford Railroad, so far as the right of way has been obtained, and all the appurtenances belonging to said Railroad Company, from Lafayette to the edge of Lee County, and also the surveying instruments belonging to said Company." The plaintiff's attorney stopped proceedings on those executions on the 12th of April, 1867. A second execution was issued on each judgment to said sheriff, May 8, 1867, and levied on that day, under the Lockett execution, according to the return thereon, on a house and lot, and also on "the right of way to the Opelika and Oxford Railroad, so far as the right of way has been obtained, to the edge of Lee County, and also all the surveying instruments belonging to said Company"; and under the other execution, according to the return thereon, on the same property, omitting the words "the right of way has been obtained, to." After a sale the sheriff executed the following deed to the purchasers: 66 'This indenture, made and entered into this 3d day of June, 1807, between R. J. Kellam, sheriff of the County of Chambers, in the State of Alabama, of the one part, and D. W. & J. G. Visscher and A. L. Woodward, of the other part, witnesseth: That whereas on the 26th day of October, 1866, a judgment was duly rendered in the Circuit Court for the County of Chambers, in the State aforesaid, at the fall terin of the said Court, for the sum of $12,383 and costs, in favor of Abner M. Lockett, and one in favor of D. W. & J. G. Visscher for $14,457.21, and against the Opelika and Oxford Railroad Company, on which said judgments there was issued by the clerk of the Cir May, 1867, certain writs of fieri facias in favo of said Abner M. Lockett and D. W. & J. C Visscher and against the said Railroad Com pany, directed to any sheriff of the State o Alabama, whereby such sheriff was directe to levy of the estate, &c., of said Railroad Com pany, and make the said sum of $26,751.04 besides costs, and which said writ was, on the St day of May, 1867, placed in the hands of the sai R. J. Kellam, as sheriff of said County o Chambers, for the purpose of its levy and exe cution; and whereas said R. J. Kellam, as sher iff as aforesaid, after the said writ had com into his hands and while the same was in ful force, did, on the 8th day of May, 1867, levy the same on the following tract or lot of land as the property of the said Railroad Company to wit: the right of way to Opelika and Oxford Railroad Company, so far as the right of way has been obtained, from Lafayette to the lin of Lee County, and all the appurtenance from Lafayette to the line of Lee County, lying and being in said County of Chambers; and where as the said R. J. Kellam, as sheriff as aforesaid after having duly advertised the said tract of land or railroad-bed for sale in the mode pre scribed by law, did, in accordance with said advertisement, on the 3d day of June, 1867, a the court house, in the Town of Lafayette, proceed to sell the same under and by virtue of said writ of fieri facias, and the said D. W & J. G. Visscher and A. L. Woodward, having bid for the said land or railroad-bed, then and there selling as aforesaid, the sum of $500, and it being the highest and best bid that could then and there be got for the same, he, the said sheriff, did therefore sell and cry off the tract of land or railroad-bed, to the said D. W. & J. G. Visscher and A. L. Woodward. Now, therefore, in consideration of the premises, the said party of the first part, as sheriff of the said County of Chambers, has and does hereby bargain and sell, aliene and convey unto said Ď. W. & J. G. Visscher and A. L. Woodward, the said tract of land or railroad-bed, to wit: the right to the Opelika and Oxford Railroad, so far as the right of way has been obtained, from Lafayette to the edge of Lee County, and all the appurtenances belonging to said road from Lafayette to the line of Lee County, to have and to hold the aforesaid premises and land, together with all and singular [its] appurte nances thereunto belonging, to the said Opelika and Oxford Railroad Company and to their heirs and assigns, forever. And said party of the first part, as sheriff as aforesaid, does cov enant with the said party of the second part that he, as sheriff as aforesaid, will warrant the title of said to said party of the second part so far only as he by virtue of his office is authorized to do; but it is expressly understood that said R. J. Kellam, sheriff, is in no event to be individually liable for anything herein contained. "In testimony whereof, the said party of the first part has signed, sealed and delivered this deed on the day it bears date. "Robert J. Kellam, "Sheriff of Chambers County, Alabama." After the sheriff's sale Richards abandoned or turned over to the purchasers the line of culverting or grading as far as he could do so, he exercised no further authority over miles in length, at present unfinished, its entire :: Opelika and Oxford Railroad Com- franchises and privileges held and acquired, a further claim to On the 6th together with the right of way, road-bed, road, 17 D. W. and. G. Visscher en-*** and all its ways and rights of way," etc. ten ontract with the Eufaula, The plaintiff in error became a corporation, → Orford and Guntersville Railroad under the laws of Alabama, on the 28th of May, which was signed on behalf of that 1880, and on the 13th of July, 1880, Livingston one Pennington, as its president, and Irvin conveyed to it the property so deeded ized and acted on by it. Its to them by the same description. maferwards changed to the East Ala- At the trial, the plaintiffs offered in evidence Cincinnati Railroad Company. transcripts of the proceedings as to the said anies were one and the same cor- judgments, executions, levies, sale and sheriff's ered by Alabama to build a deed. The defendant objected to each of them Eufaula to Guntersville via Ope" as illegal and irrelevant evidence, and also bedard In the fall, before the con- cause they tended to show the sale under exetered into, D. W. Visscher was in-cution and conveyance by the sheriff, of an easeFennington to see him as to whether ment alone, not the subject of an ejectment." Company could not arrange to The court overruled each of the objections and for its line Visscher's grading and allowed each of the transcripts to be read in from said junction to Lafayette. evidence, and the defendant excepted separately Visscher he could build by to each of the rulings. Visher's line, but would like to and they agreed that the Visschers to work completing the grading, and 's company would furnish the pay for the work as it progressed. began with the verbal underthe written contract should be and it went on till that contract was and then under the contract till the peted it to Lafayette, over the or line described in the deeds the company accepted it as done he contract, about May 3, 1871. of the contract it was agreed ers should "form, prepare and Caring and grubbing, grading, telework, cattle-guards, road and tracklaying, including switches, ts, three warehouses, three with fixtures complete, including of materials and all other and necessary to complete y the running of trains, except als which go into the superthe road," from Opelika, or two ref, as the Company should e, for a distance of twenty beyond Lafayette. The conterms of compensation, and the completion of the twenty ment of the amount of the DW Visscher should transfer to the and title vested in him to of way or other property Pertaining to the said road, nization known as the OpeTRR The Visschers were amant due to them for the mr the contract, and claimed that te them more than $100,000. After the close of the testimony the court charged the jury that if they believed from the evidence that the Company before named entered into the written contract with the Visschers, and under that contract was let into the possession by them of the route described in the deeds from McLemore and others, and failed to perform its part of the contract, and the Visschers did perform it so far as permitted by the Corporation to do so, and the Corporation_failed to make the full payments due to the Visschers under the contract, the Corporation and all persons claiming under it were estopped from setting up any title in the premises sued for adverse to the Visschers, and their possession under the contract was not ad verse. The court also charged the jury that the property conveyed by the deed of the sheriff was the subject of levy and sale under execution, and that the objection made by the defendant that it was only an easement and not the subject of a levy and sale under execution, was not well founded. To each of these charges the defendant excepted. There were exceptions to other instructions, and to refusals to charge in accordance with requests made by the defendant; but the questions which we regard as decisive of the case are raised by those already mentioned. The right which the Opelika and Oxford Company obtained under the deeds from McLemore and others (and the right obtained by condemnation is set forth as of the same character) was described in the deeds as "the right of way over which to pass at all times, by themselves, directors, officers, agents, hirelings and servants, in any manner they may think proper, and particularly for the purpose of rune of sale made in a suit for the ning, erecting and establishing thereon a raila mortgage made by the East road with requisite number of tracks"; and it and Cincinnati Railroad Company, was provided that "to this end the limit of and Richard Irving, Jr., said right of way shall extend in width fifty received from the proper officer feet on each side of the slope stake of the right Vanad April, 1960, a deed of the " entire of way of the said railroad when completed, and py of, or belonging to, the East to extend in length through the whole tract of Lista in: (bernnati Railroad Company, land owned and claimed" by the grantor, describ17 poses, and all and singular ing it," and running in such direction through antennad of said Company, extending said tract of land" as the Company, by its ente duala dia jama, to Guntersville, Ala-gineers, should think best suited for the purpose aut two hundred and twenty of locating and establishing its works. The [349] [350] |