MINNEAPOLIS, ST P & S S M R. CO. v. C L MERRICK CO.(1920)
Mr. John L. Erdall, of Minneapolis, Minn., for plaintiff in error.
Messrs. Andrew Miller and Alfred Zuger, both of Bismarck, N. D., for defendant in error.
Mr. Justice VAN DEVANTER delivered the opinion of the Court.
This is a companion case to Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Washburn Lignite Coal Co., 254 U.S. 370 , 41 Sup. Ct. 140, 65 L. Ed. --, just decided and was brought by a shipper to recover charges exacted in excess of the statutory rate. The shipments were made prior to the first judgment in the injunction suit, when the carrier was refusing to give effect to the schedule; and the excess was paid under protest [254 U.S. 376, 377] and because the carrier would not deliver the coal on payment of the statutory rate. In the trial court there was a judgment against the shipper, and this was reversed by the Supreme Court with a direction to award the shipper the amount claimed. Merrick Co. v. Minneapolis, St. P. & S. S. M. R. Co., 35 N. D. 331, 160 N. W. 140. The carrier prosecutes this writ of error.
The pleadings, the opinion of the Supreme Court, and the briefs in this court, show that the only controversy in that court was over the meaning and effect of the first judgment in the injunction suit as affirmed by this court 'without prejudice,' etc. On the part of the shipper it was insisted that that judgment finally and conclusively determined the validity of the statutory rate in respect of the period preceding its rendition; and on the part of the carrier it was insisted that the judgment was interlocutory merely and was entirely superseded and held for naught by the subsequent judgment of this court in the later proceeding. The court sustained the shipper's contention and rejected that of the carrier, saying:
In support of that view the court quoted portions of the opinion in the case cited, including the following:
When we have in mind the question which the Supreme Court was called on to decide, and did decide, and the fact that the question was no longer an open one in this court, as is shown by our opinion in the Missouri Case ( 241 U.S. 533 , 36 Sup. Ct. 715), it is apparent that this writ of error is without any adequate basis.
Writ of error dismissed.