
    E. C. Camp v. Coal Creek & Winter’s Gap Railroad Company.
    1. Pleadings and Pbactice. Hkceptiom to repcoi,. Upon a petition to take private property for works of internal improvements, tke proper time ' and way to make objections as to want of title, of proper parties, etc., is by exceptions to the report when filed.
    2. Same. Appeal. An appeal will not lie from an order directing a writ of inquiry of damages.
    EROM ANDERSON.
    Appeal in error from the Circuit Court of Anderson county. D. K. Young, J.
    Henderson & Jourolmon for Camp.
    Andrews & Thornburg and Lucky & Yoe for Company.
   Turney, J.,

delivered the opinion of the court.

In November, 1882, defendant in error filed its petition in the circuit court of Anderson county, asking that the right of way over three tracts of land described in the petition, be assigned to it and set apart by metes and bounds for railroad purposes, under the provisions of the statutes. On November 14th, 1882, petitioner moved for an order pro oonfestso, and the appointment of commissioners to assess damages, etc. Thereupon E. C. Camp appeared by counsel and resisted the motion, upon the ground that sufficient notice of the filing of the petition had not' been given. The motion was refused. In March, 1883, E. 0. Camp moved the court to dismiss the petition for want of proper parties, it being urged that the legal owners to parts, of the lands were not before the court, as appeared from the petition. Petitioners renewed its motion for the appointment of commissioners to set apart, etc. Both motions were continued to July term, 1883, when the motion to dismiss was overruled, and two weeks time to make defense was asked and refused, and a writ of inquiry to assess damages, etc., was awarded, no sufficient cause to the contrary being shown, from which Camp prayed and obtained an appeal.

The case is before us on motion to dismiss the appeal as premature. The Referees recommend a dismissal.

It is argued that the court was hasty in awarding the writ, after refusing the time asked for in which to make defense, that two days were allowed by law, and the writ was an order at once upon overruling the application for time. The rule allowing two days to plead is not applicable to this case. Chapter 11 of Code, entitled, “Of taking private property for works of internal improvement,” and under which this proceeding is instituted, by sec. 1330, provides: “ After the requisite notice has been given, if no sufficient cause to the contrary is shown, the court shall issue a writ of inquiry of damages to the sheriff, commanding him to summon a jury to inquire and assess the damages.”

The record shows the requisite notice to have been given, and that tbe statute has been strictly pursued as far as the case progressed up to the time of appeal.

If, as argued, some owners of the lands are not before the court, the fact in no way affects those who are, and as in terms provided, “the proceedings will only cover and affect the interests of those who are actually made parties,” etc.

Under sec. 1341, either party may object to the report of the jury, and the same may, on good cause shown, be set aside and a new trial awarded.” 1} would seem that under this section all such objections as want of title, of proper parties, etc., may be made. That construing the several sections together, the proper time to make all contests is when the report is filed by exceptions thereto.

The order directing a writ of inquiry is not such final judgment as may be apppealed from, and the motion to dismiss is allowed.  