The Federal Reporter. Volume 63 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. October-December, 1894. Page: 16
xi, 1023 p. ; 23 cm.View a full description of this legislative document.
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- ' 3raa PORTwEs, vol. 63.
DOUGLASS et al. v. BYRNES et al.
(Okreuit dourt, D. Nevada. July 9., 1894.)
No. 574.
EmNnrr DoxAn - CONbEXNATION PROCEEDINGS - JICONDUoT Or COMMs-
oaroxP--V4cATM REPron.
The report of commissioners to assess damages in condemnation pro-
ceedings will be set aside where it appears that one of the commissioners,
after sit rig upon his duties, was retained by one of the parties to the
proceeding asl attorney, to defend a suit against him, even though the
attorney for the other party may have known the fact, and did not com-
plain until the report was filed.
This was a petition by J. M. Douglass and others against J. D.
Brynes and others for the condemnation of a right of way for the
construction of a mining tunnel. Petitioners moved to set aside the
report of the commissioners.
F. . uffieker and J. L, Wines, for plaintiffs.
W. E. F. Deal and E. L. Campbell, for defendant.
HAWIEY, District Judge. Petitioners move the court to set
aside the report (there is a majority and minority report) of the
commissioners herein, upon the ground, among others, of irregular-
ity in the proceedings of CommissionerO. E. Mack, who was selected
by defendants, and appointed by the court, as a "disinterested per-
son," to asaert.in and assess the compensatiop to be paid defend-
ants by petipipnrs for the right of way condemned for the purpose
of constructing a tunnel, under the provisions of the "Act to en-
courage the mining, milling, smelting or other reduction of ores
in the state of Nevada." Gen. St. Nev. 261; Douglass v. Byrnes,
59 Fed. 29. ,
The fact, is that this commissioner, previous to the time of his
appointment, had acted as an attorney for one of the defendants,
which was unknown to petitioners or their attorneys, or to the
court; but it airmatively appears that said commissioner was
not regularly employed for said defendant, anp, had only been
specially retained to try two cases' in the justice's court, and that
his employment for, and. business with, the defendant was ended
and settled -prior to his appointment as a conpnmissioner., If the
conduct of this commissioner had, been in all other respects fair,
impartial, and, disinterested, this alleged irregularity would not be
of sufficient gravity to justify the court in setting aside the report
upon this ground; but the further fact appears that after his ap-
pointment as, a, commissioner, and after he had taken the oath
to "honestly, faithfully, and impartially perform the duties imposed"
upon him as a commissioner (Gen. St. Nev.0, 262),, and after all
the testimony In this proceeding had been taken, but before the
tnal argument, he accepted a retainer and acted as an attorney for
-the same defendant in the trial of another cause in the justice's
.court. The fact of such employment was known to petitioners'
counsel. No objection was made to this conduct upon the part of
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The Federal Reporter. Volume 63 Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. October-December, 1894., legislative document, 1895; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc36388/m1/27/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.