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Syllabus.

raised for decision, of avoiding rather than expressing any views upon it.

We are of opinion that the writ of error cannot be maintained. Writ of error dismissed.

PRATHER v. UNITED STATES.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

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Mr. H. E. Davis and Mr. Jeremiah M. Wilson opposing.

THE CHIEF JUSTICE: On the question of our appellate jurisdiction this case differs in no material respect from Chapman v. United States, just decided, ante, 436. The motion to dismiss the writ of error is sustained.

Writ of error dismissed.

PERRINE v. SLACK.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 549. Submitted October 13, 1896. Decided November 30, 1896.

The controversy in this case being between the mother and the testamentary guardian of infant children, each claiming the right to their custody and care, the matter in dispute is of such a nature as to be incapable of being reduced to any pecuniary standard of value; and for this, and for the reasons given in Chapman v. United States, ante, 436, it is held that this court has no jurisdiction to review judgments of the Court of Appeals under such circumstances.

Opinion of the Court.

The court also declines to pass upon the question whether the action of the .Court of Appeals, after the writ of error had been granted, was or was not improvident.

THE case is stated in the opinion.

Mr. Jeremiah M. Wilson, Mr. Calderon Carlisle and Mr. William G. Johnson for plaintiffs in error.

Mr. George E. Hamilton and Mr. A. S. Worthington for defendant in error.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This proceeding involves a controversy as to the custody of two children of tender years. Mrs. Perrine is the sister of the deceased father of the children and her co-plaintiff in error is her husband. She had the custody of the children under their father's will. Mrs. Slack, defendant in error, is their mother, and filed a petition for a writ of habeas corpus in the Supreme Court of the District of Columbia to obtain custody of them. The writ was issued, and return made by plaintiffs in error, which was demurred to, the demurrer overruled and the writ discharged. From this judgment Mrs. Slack appealed to the Court of Appeals of the District of Columbia, which reversed the judgment, and remanded the case, with directions to sustain the demurrer to the return, and to proceed with the case in conformity with the opinion of the court. Thereupon a writ of error, to operate as a supersedeas upon the filing of a bond in the penal sum of ten thousand dollars, was allowed, and the bond required was filed and approved. After this, an order was entered by the Court of Appeals, the Chief Justice. dissenting, as he had from the judgment, directing the judge of the Supreme Court of the District, who had entered the order discharging the writ, to place the children in the custody of their mother, pending the prosecution of the writ of error, upon her giving satisfactory security. This order was entered and complied with, and the children were taken from their

Syllabus.

aunt, their testamentary guardian, and placed in their mother's custody.

The situation being thus, application was made to this court for the issue of a writ of supersedeas, or other proper writ, to the Court of Appeals, or to the judge of the Supreme Court of the District who had entered the order as directed by that court, to supersede, annul and set aside the proceedings taken after the writ of error to this court had been allowed and made a supersedeas. That application having been submitted, we found it necessary to request counsel to file briefs on the question of the jurisdiction of this court to entertain the writ, and this has been done.

We are of opinion that the writ of error will not lie. The controversy is between the mother and the testamentary guardian of the infant children, each claiming the right to their custody and care, and the matter in dispute is of such a nature as to be incapable of being reduced to any pecuniary standard of value. Barry v. Mercein, 5 How. 103.

For the reasons given, and on the authorities cited in Chapman v. United States, ante, 436, we hold that this court has no jurisdiction to review the judgments of the Court of Appeals under such circumstances, and, as the writ of error must be dismissed, we ought not to consider the question whether the action of the Court of Appeals, after the writ of error had been granted and the judgment of that court superseded, was improvident or not.

Writ of error dismissed.

CHICAGO AND NORTHWESTERN RAILWAY
COMPANY v. CHICAGO.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 11. Argued November 6, 9, 1896.- Decided November 30, 1896.

As the plaintiff in error did not specially set up or claim in the state court any right, title, privilege or immunity under the Constitution of the United States, this court is without jurisdiction to review its final judgment.

Opinion of the Court.

THE case is stated in the opinion.

Mr. E. E. Osborn for plaintiff in error. Mr. L. W. Bowers was on his brief.

Mr. W. C. Goudy filed a brief for plaintiff in error on the question of jurisdiction.

Mr. John S. Miller for defendant in error. Mr. William G. Beale was on his brief.

MR. JUSTICE HARLAN delivered the opinion of the court.

This was a proceeding instituted by the city of Chicago in the Circuit Court of Cook County, Illinois, for the condemnation of certain real estate. The object of the proposed condemnation was to open West Taylor Street in that city.

The Chicago and Northwestern Railway Company and the Chicago, St. Louis and Pittsburg Railroad Company, being the owners of the property, appeared and filed a cross petition, in which they alleged:

"That in addition to the land described in the above-entitled cause, which will be taken for the opening of the street mentioned in said petition, they are the owners of lands on each side of the said strip of land to be taken for said street, which land is used by them as a right of way for their railroad tracks necessary in the carrying on of their railroad business; that the taking of the said strip of land mentioned. in said petition for the opening of said street will damage the other land owned by said companies, and used by them as right of way for their main tracks through the city of Chicago and for side tracks used by them in carrying on their business as common carriers.

"That the taking of said land and opening of said street will interrupt the business of your cross petitioners.

"Your cross petitioners further show that the taking of said land and the opening of said street across the same will necessitate the construction by your cross petitioners of approaches

Opinion of the Court.

to such crossings, the planking of their tracks, the draining of the side crossings and the adjoining land owned by said petitioners, the erection of gates at said crossing, and the keeping of a flagman thereat; all of which will cause the said cross petitioners great expense, to the great damage of your cross petitioners.

"Wherefore your cross petitioners say that the damage to your cross petitioners, to their business and to the lands of your cross petitioners not proposed to be taken in the said petition, and all damages caused by the opening of said street and the taking of said lands therefor be assessed as by the statute in such case made and provided."

By consent of the parties, entered of record, the cause was tried by the court without the intervention of a jury. The court found and adjudged that the just compensation to be paid by the city for the taking of the property described for the opening of West Taylor Street was one dollar.

Thereupon the Chicago and Northwestern Railway Company moved without stating the grounds for its motionthat a new trial be awarded. That motion was overruled, the company excepting, and it was adjudged and decreed "that the sum of money awarded by the court by its finding to the owner of said lot, piece or parcel of land and property is a just compensation and the value thereof for the taking and damaging said lot, piece or parcel of land and property by the proposed public improvement mentioned in said petition, and the said owner shall accept from said city of Chicago such sum as so awarded on account of the lot, piece or parcel of land and property so owned by it, all of said lot, piece or parcel of land and property being in the city of Chicago, county of Cook, and State of Illinois, and that upon payment into this court by the said city of Chicago of the said sum of money for the use of the owner of the said lot, piece or parcel of land and property, or upon proof made to or before the court that the said sum of money has been paid to the owner of said lot, piece or parcel of land or property, the said city of Chicago shall have the right at any time thereafter to take possession of and damage the property in respect to which

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