xnnsas our at 1*. RY. co. v. rnrmssrum LUMBER co. 13
only upon notice,) in order to protect the right of the parties, or to preserve
the property in litigation. " . _
So BILLINGS, J., in Railroad Co. v. Railroad Co., 5 Fed. Rep. 160, on
refusing to dissolve an injunction before the return-day of the record,
very aptly expressed the limitation of the rule as to what the United
States circuit court might do ad interim:
"What the court should do in this, as in all cases where the record is here
before the return-day, is by all proper orders to preserve the property in dis-
pute, and the rights of all the litigants."
But it must be conceded that to entertain this motion, and proceed
now to the appointment of commissioners, is to proceed with the cause,
It is to assume that the cause is properly here, and to take a step therein
in the nature of adjudication. As shown by the preceding discussion
herein, the court may be called upon to determine, in the first instance,
whether or not it has acquired jurisdiction, either over the subject-mat
ter, or from the character of the parties. Unless it has so acquired ju-;
risdiction, it could not proceed to appoint the-commissioners, as its act
therein would be coram non jadrre. In the next place, the court must
determine,.from an inspection of the petition, whether or not the juris-
dictional facts are stated entitling the petitioner to institute the condemna-
tion proceeding. If it be said in answer to this that the state court has
already determined the sutiiciency of the petition in issuing the sum-
mons to the defendant, it is not maintainable, because the statute directs
that upon filing the petition summonsshall be issued, giving the owner
10 days’ notice "of the time when said petition will be heard;" showing
that the petition is not to be heard until after such summons. And as
the cause was removed from the state court on the return-day of the sum-
1 mons, the petition remains to be heard. The succeeding section of the
statute provides that the next step to be taken is that the court, or judge
in vacation, shall be satisfied that due notice of the pendency of the pe-
tition has been given. These are facts to be ascertained by the court in
the progress of the cause; and whatever construction may be placed upon
the term "said petition will be heard," whether it pertain, as contended
by counsel for defendant, to the determination in advance of the ques-
tion whether or not the use be a public one to which the property is to
be applied, or whether it pertains solely, as contended by counsel? for
the petitioner, to the giving the property owner the right to be heard in
the matter of appointing- proper commissioners, it still remainsan action
taken by the court in the progress of the condemnation proceedings, and
as such it cannot be regarded as in the nature of ·a_mereprovisiona1,or·
der designed to maintain the statu, quo of the parties, "or to preserve
the property in litigation.” It was for this reason, ·in the main, that
Judge NELSON, in Re Railroad Co., 2 McCrary, 216, 4 Fed. Rep. _10,re-
fused, before the return-day, to appoint such commissioners. Q_   al-
ready suggested, before the appointment of suchcommissioners could be
made on this record, I should have to determinethe question  to
whether_this_cause was properly removed to this court; and- aslam im
clinedto the opinion that the same was prematurely' removed, and;_as"I