Bucy v. Nevada Const. Co.

GARRECHT, HANEY, Before HEALY, Judges. Circuit GARRECHT, Judge. Circuit originally An action commenced appellant, state court Idaho Montana, against a citizen of the state of appellee, corporation organized and a existing the laws of the under state statutory Missouri, duly designated with a lo- agent principal place and a of business Ashton, County, cated at Fremont Idaho. defendant-appellee motion On cause, 9, 1939, September on removed representation of to the court on the below citizenship. diversity District motion, granted Court a made thereafter by plaintiff, the case to the state to remand days later, Four the District court. vacated remand theretofore the order of entered, and motion to remand ordered the appellant’s argument denied. As is con- solely cerned with these two en- orders Court, tered District we set them they appear transcript: forth as plaintiff, remand, “The motion of having the above cause been filed and Court, sidered It is Ordered that the hereby Motion granted. said to remand “Dated November C. “Charles Cavanah Judge.” “United States District And second order: appearing “It Court that en- since HEALY, Judge, dissenting. Circuit tering 27, 1939, the order on November above the cause jurisdiction, lack Court for State Supreme Court of the on United States majority opinion November differently construed Federal Statute and has held that the Federal Courts have Corporations jurisdiction although the are State, organized in have com- plied with the laws State transacting State, business therefore, it is Ordered the order here- made in the above Novem- tofore ber cause on 27, 1939 vacated and set aside and motion remand is denied. 1, 1939. “Dated December Stotesbury and M. Stotes- “Charles C. Cavanah & Lewis J. Mont., Bozeman, Judge.” and Herbert “District ibury, all made, objection pro- District Court entered a No seems remand order exception taken, is, “be, or- viding to either of these that this cause remanded County.” ders. to the Circuit Court Davidson Application was made to the court to January On more than a month set aside its own order of In re- remand. after the court had entered its order vacat- fusing to do so the court said that its lan- ing order, appellant, plain- guage, quoted above order of tiff, appeared filed is denominated what mand, “having propria vigore ex reinvest- Thereafter, complaint. an amended ed the jurisdiction, State court with neces- defendant, January 1940, appellee, as sarily the jurisdiction terminated interposed answered and counter- also court.” This decision has been followed issue, claim which raised á new cases, and undoubtedly other is cor- plaintiff reply filed on March rect so applied as its may far rule be Thereafter, parties voluntarily appeared all similar facts. But it is evident that the proceeded and trial the court before facts and circumstances before the court in that case are different from jury without a on October here. those decision, was cause December submitted for and on judgment was rendered It is to be noted that in the Ausbrooks for the defendant on its counterclaim. ap- case the District Court entertained an plication rehearing, might for which indi- plaintiff pursues appeal, during that even in case the time cate tending that the order of the District Court for, might in which a new trial be asked granting plaintiff’s di- motion to remand jurisdiction. still assumed it had vested court below of and Sherman, 364-369, In re proceedings that all thereafter were inef- 505, 31 L.Ed. There is a rule in the him, having fectual to bind the state court United for the District Court of the States automatically juris- reinvested with grants District of which to all or Idaho appellant’s solely diction.1 The upon case rests parties, any stat- for certain reasons technicality, question other ed, application rehearing if a new trial or being raised. days is made not later than ten therefor apparent light of in the Neirbo It is entry judgment. of the One of after Corp., v. Bethlehem Co. S.Ct. occurring in law these reasons “error 167, 128 A.L.R. 153, 84 L.Ed. rule would indicate that the trial.” This jurisdic Court did that the District court of its own proper it would be erroneously entered its order when it tion to in the matter. to take action initiative the instant case immediately remand, re which it almost motion, as of its own and realized its error. as soon as it voked record, any- appears in before far as carrying into thing been done towards had us, therefore, case before We have order, execution Court, determined as which the District by manifestly its set aside own reviewed and Supreme Court, actually juris- order. erroneous subject parties and the mat- diction mistake, which, through inad- ter but Dis the United States rule of This vertence, law, the District or error of proce that the for Idaho states trict Court effect, which, in made an order de- prescribed in the General as shall be dure Appellant jurisdiction. now insists nied the District Procedure for Civil Rules of completely and that this erroneous order Rule 60 of United States. Courts effectively divested the court below of Rules, 28 U.S.C.A. follow General these any power with reference to take action Advisory Committee’s 723c, the ing section words, other that the court was thereto—in thereon, particularly the discus and * * pp. 376. *” Judgments on Freeman § Tele- Lucas Western Union v. graph Co., Appellant power inherent insists Iowa 109 N.W. abrogated by L.R.A.,N.S., the 6 of the court has (28 71), terms of the statute U.S.C.A. § If above the construction word of the Floyd has held and it been so in Leslie “immediately” place, be substituted in its Co., F.Supp. 401, D.C., 11 402. There Gas the statute would “such read: remand shall the the of court held that remand order practicable be as soon as into exe- carried ipso jurisdiction facto the the terminated of cution” or “such remand shall be within a opinion District Court. The case reasonable time carried into execution”. even went further and held that state the harmoni- give would Such a construction jurisdiction court was reinvested with statute. reading to all words of the ous the copy whether or not a of the carry proper procedure 'The was filed the state court and where subsequent ing of remand into execution proceedings no the order had been taken. copy the reasoning. filing of certified We cannot follow Not would be Protec only it counter in the state court. Travelers’ does run the of order to doctrine Smith, Cir., F.2d whereby tive Association v. the common courts of record law Propeller Tow- power 511; Empire have inherent to Min. Co. correct their own errors, order is abrogates C.C., but Co., it all 108 F. 900. statutes enacted Boat purpose very the does not for that and misconstrues statute self-executing the not here “such shall statute under The words remand discussion. so state. immediately execution” carried into be by appellant cited These cases may immediately plaintiff the mean that Courts, which from federal District copy made to certified have a ipso of remand facto assert that an order to of the state file with clerk proprio vigore juris terminates the or ex proper remanded. case is court, place nar diction of federal too is to case here application the law upon meaning and restricted a row 195, p. 826: well R.C.L. stated § “immediately” no give mean word “ *** grants a mo- When the court In the Act. words used in ing to other practice importance to an of the word it is the enter these decisions the to remand tion Code, “immediately” exaggerated is arid that effect. § order to Judicial utterly provides ‘when- 71], are words “carried into execution” U.S.C.A. § [28 any quoted removed last words clear cause shall be disregarded. The ever any district something further was to into ly indicate that State court States, the district court shall be the order was entered United done after improperly re- effect, the cause carry but these it into even without decide that remanded the same to be significance moved, should be and order words such similar came, it such “immediately” from whence given to word alone. to the State immediately carried into point “immediately" touching the shall decisions unlikely It is therefore repeatedly mean soon execution.’ has been held to “as exception was power, at the an federal court has even the function of term, trial pointedly of remand bring an order to the attention vacate ruling from the filing importance after it judge has been executed give the copy standpoint lawyer state court of a certified opportunity order. make further judge But before the order is executed an trial discretion, may, grant ruling. re- Proceed- regarding his reflection upon Institute, C., hearing Washington, D. ings p. sufficient shown.” stated it was justifying the rule compelling There is another rea necessary, if exception longer “the is why appellant prevail son should not on you your point to the court clear have made appeal. shows, this appellant As far the record Institute, Proceedings Cleve- below.” land, 1938, nothing having did toward it p. of course 312. “But proceed court, which, case ac the state spring a necessary not that a man should cording here, only argument to his was the * * trap *, the rule so properly forum where the case could his quires grounds of him to disclose Apparently, following heard. instead of Proceed- objections fully to the court.” he, such some reservation, consistent course without C., Institute, Washington, ings D. proceeded voluntarily urge p. p. see also his case in the Federal It District Court. applies will by anyone the rule not be denied that each and do not think We every step proceeded ruling now com taken as the case the situation here. plained culmination, the vacation was and is inconsistent of is concerned with appears utterly present It posi with the nowhere variance remand order. of in the appellant, tion claimed that namely, that the court record this, jurisdiction without not do from the court could instant it the lost case proceed entered with the the remand order. There point single acquiesced, protest line of and the parties in the record from when all appeal to this appellant that time until notice of first made after the in is included designation of “Designation appellant’s his Appeal,” of in Contents of on court Record he intends to April 21, point filed in this as the one on court on rely rely. a statement that he intended to upon “The again juris error in assuming in must It be remembered making diction after remanding order the controversy and the fact the law and in Appellant to the cause ing State Court.” hav proper jurisdiction parties came within the failed to take action toward exe present There were of the District Court. cuting the of order remand before it was citizenship diversity requisite of the the versy might aside, not, then, set should he if had he amount. The contro jurisdictional position, proceeded faith in his have the in either litigated in have been appeared court? specially state the or have interposing By or federal court. the state purpose of the questioning District appellant complaint assumed the a new jurisdiction? Court’s But he did no such litigant, equivalent a new position of to thing; contrary, moving on the he as the judg to, trial and by going forward party prosecuted judgment his case to final advantage technical whatever ment waived then, appeal, in the District Court and may have afforded order the erroneous him. When the urges jurisdiction for the first loss of time appeared parties before by permit the We cannot him court. thus matter, litigated both the the court parties speculate on the outcome of to We his case. in, acquiesced may said to have be may judgment sure had to, control of their re the and consented spective thought favor, equal would contend in his he with by rights the said court. This jurisdiction to sustain fervor the interpreted doing not to be as is court. fundamental rule that con to the violence jurisdiction fed suggested cannot It that under Rule 40 sent confer courts; necessary where to appellant but Rules Civil Procedure eral facts of exist, urge techni failure to a obligation jurisdiction under no to advise the court may procedural defect considered objected the action cal or that he to of the court under the acquiescence. hold that setting aside We the remand order or to this case the of special to circumstances make known the court that he desired validity question the preserve point plaintiff cannot now to the had no vacating the remand order power to reconsider or aside of the denying set. its remand. remand, especially to pointed his motion out the discussions of As Rule think, is, pro filing no have with I he could state of the fact that the view prerequisite revesting of court ir the state sense a to judgment in the to ceeded If, he now hour after a of which there. respective the order an entered, Metropolitan Casualty manding Co. state complains. order is the proceed judgment 61 S.Ct. in the absence Stevens, were to to copy, upon coun- the informal advice of L.Ed. 1044. all, in- upon would or advice at he sel deed be a no judgment is affirmed. The hardy would who advocate case ren- the view we have taken of The with- proceedings so had were that the tend unnecessary ruling motion on the ders Metropolitan Casualty jurisdiction. out Cf. transcript of rec- supplemental the strike Stevens, ord. 85 L.Ed. 1044. foreign purpose 60(a) has Rule HEALY, Judge (dissenting). Circuit indicates, it present As title its situation. whether, hav- question presented is mis- correction “clerical relates cause, ing the district court remanded mis- no clerical was here takes”. There take, vacate or- power a later time to its in- oversight, omission within I the case. jurisdiction of der and resume or- tendment rule. point agree had. unable to that it am precisely der entered the court was importance, ad- and the reasons is of such For order the court intended to enter. support their my associates vanced stated, general I think reasons to be im- far-reaching in their are so decision plications, power to vacate its orders dur- set I constrained feel ing remands.4 term does not extend to my considerable matter at views out length. pre- turning third Before statute a My liminary to be as- matter is noticed. way preliminary to be observed sociates, apparently as an alternative to its order when the court entered disputed point, find their on the holding 27, 1939, “remanding November appellant “another com- conduct jurisdiction”,1 lack of the state court for why prevail. he pelling should reason” contemplat or action was further juris- acquiesced is held He intended effectuate ed cannot, therefore, be heard to diction judicial I function purpose. think the ap- respect holding dispute it. federal court is exhausted and of authority If, question. pears beg entry with terminated contends, power to court lacked set aside the remains order. What thereafter then, remand, far as this case is con- the so done, anything, judicial if not a is to be removability cerned, “the is closed” issue of by performance the clerk a the of but act remand; obliged is by and this court the practice purely ministerial function. The removable, that the was not to assume suit ap Idaho clerk’s officein the district the in by acquies- appellant hence that could not immediately to cer pears forward a be to jurisdiction. Metropolitan cence confer charge, order, to copy the without tified of Stevens, Casualty supra, 312 the state court.2 While the the clerk of 61 85 pages S.Ct. L.Ed. original subject, is be the it to is silent on record driven back to in- Thus we are the his usual the clerk followed presumed that quiry, upon answer to which alone the the by dispatching the instance in this custom depends. the solution of case proper point is any I the copy. In believe event material. not acqui- I any In think there was no event jurisdiction in as would office of the such practice, the the escence As in the used raising estop appellant from thereafter merely informative.3 copy is certified Rules it, question. Rule 46 of the require and its the of not terms does statute 3 quotation sentence the characterized last is so The order 195, quoted vacating Judge from main 23 R.C.L. in the § order. in his Cavanah predicated Sherman, opinion, appears on In re no rule on is be court to There appear Jan., subject; there to nor does be the is practice 31 L.Ed. The ease not decisive any that district of furnish- proposition transcript proceedings ing stated. the of the the a provides rule, “these rules a Rule 82 absence of the federal court. * * * not construed to extend administrative shall be the I assumed have jurisdiction of the practice the district courts." which court a matter of is may itself.’ inform of; complained ex- formal provides Civil and that manifested Procedure he had ceptions court rulings try or orders of his unwillingness the his cause purposes unnecessary, are “but for all federal moving court I to remand. exception an has heretofore have nothing which found in the discussions party, the necessary that a light portion it which is sufficient throws on the the is court ruling italicized, the rule I I time the made or or which believe have sought, provision known to makes the should be held to obviate take desires necessity subsequent the action exception which he of a or ob- objection jection, or his the action assuming jurisdic- even that the therefor; grounds and, party may question his tional be waived. if object ruling has or to a opportunity opinion clear, While the main not as is made, order at the it the absence time is holding I read its even traditional ex- objection preju- an does not ception thereafter ap- intimates, would have avail served to supplied). (Emphasis dice him.” pellant. must, opinion He “appear specially” question if he would affirmatively The record discloses jurisdiction; and it gathered is to be challenged ab- made in the objection prove should unavailing his he parties If sence of the and their counsel. must, position”, “if he had faith in his turn language rule is taken to mean to the part state court.5 If says, objection what it an the absence of opinion something was intended to be more circumstances, ought not, under the be than a questions, series of rhetorical thought prejudice appellant. Had to order been made in holding totally at variance with settled peti- consequence of a principles applicable cases, removal party, rehearing removing tion for appellant apparent upon will very reading opportunity would have had the authority. decision court cites as obj to make known to the court ection to his suit, being entirety The order in in- its sought, namely, juris- action the lack of terlocutory, could not have been made the diction the court to reconsider set subject appeal;6 a direct it review- remand; aside it would then have only appeal judgment.7 able on from final appellant been incumbent on to make order, appellant Confronted with the appear would pre- objection if known his he desired to options normally open to have the point. But serve the here the court made party believes who without court is doing the order of its own motion. so jurisdiction and whose motion to remand power necessarily ruled so been denied.8 has act, affording appellant an this without opportunity pertinent heard thereon. In con- (§ statute Judi- appellant sidering right Code, provides: thereafter cial 71) U.S.C.A. § impor- ruling any reviewed it “Whenever cause shall be removed tant any to remember had not State into district States, invoked invited error the United and the district court Cray, Hegarty, The state court had the usual made McFawn & Co. v. Con allowing Appellant’s roy Co., Cir., order removal. the & 2 85 F.2d 516. ability entirely 8 proceed might, example, there was not He suffered have court, by a matter of his own choice. That his ease to dismissed the federal comity prosecution as a matter of if for no other rea for want of and then son, Casualty Metropolitan question by appealing Co. v. Ste have the raised page vens, supra, 569, judgment, compare 312 U.S. 61 S. from the final Ruff v. 715, 1044, might Gay, Cir., 684, Ct. 85 L.Ed. well have 5 67 F.2d affirmed 292 proceed juncture; U.S., 25, declined 608, that and 1099, 54 S.Ct. 78 L.Ed. any attempted in event if had might, 92 A.L.R. 970. Or he as he did proceed proceed here, there the federal court could to the trial of his case' enjoined doing. court, taking him from so steps have Tou- the federal whatever cey by Co., pleading by v. New York Life Ins. 62 S. amendment thereto as 139, might necessary 86 L.Ed. —. prop- Ct. seem to him to the Pennsylvania 6 Co., presentation Bender v. er 148 U.S. of his cause on the mer- 502, 640, then, its, 13 37 against S.Ct. L.Ed. 537. and if the decision went 7 Gully Bank, him, point v. First National by appeal 299 seek of U. review his 96, 109, 70; judgment. 81 57 S. S.Ct. L.Ed. Geer the final Pursuit of the Works, Alkali Mathieson v. 190 U.S. latter would course not of itself consti- 807, 1122; 428, any 47 23 L.Ed. rights, S.Ct. tute a waiver of Mans of his Met- Ry. field, Co., ropolitan Casualty C. & Lake Mich. supra. Stevens, 111 U. Co. v. 510, 379, 4 S. S.Ct. 28 L.Ed. 462. Cf.

221 improperly sequent day thought of the term cause was decide that the shall orders removed, to be remand- remand extend to the vacation of order the and .came, whereby had jurisdiction it court from whence of the court to the State ed immediately Apparently in completely carried been remand shall exercised. such of execution, appeal copy remanding writ order that case of the into nor state the decision of the district had not been filed error from subsequent therein, but the proceedings shall be allowed.” so such opinion expressed that has 1887, provision, first enacted This Aus The was nonetheless conclusive.11 “broadly con- beginning from the been * * * other brooks decision has been followed of prohibiting review strued v. courts, particularly Leslie district see indirectly, remand, directly or an order of Co., D.C.Ky., F.Supp. Floyd 11 Gas Gay Ruff, by any proceeding.” 292 U.S. v. Co., D.C.S. v. Atlantic Life Ins. Garrison 29, 610, 1099, 92 25, 608, L.Ed. 54 78 S.Ct. C., F.Supp. 469, significant 18 and it is purpose the statute A.L.R. The of 970. from district court no considered case expressed has not been better than holding contrary has been found parte Pennsylvania Supreme in Ex ' Moulding-Brownell books. See note to 142, Co., 1890, 451, 11 34 U.S. 137 S.Ct. Corp. 1481. Sullivan, 114 v. A.L.R. in- that even L.Ed. where it was held upshot is of these decisions The is not available. direct review mandamus immedi renders the remand order general object of statute ately The court that “the said upon entry; and that effective the act to contract of ipso au courts”; divests court of facto federal and that “the use of thority jurisdic and revests words, immediately over the case ‘such remand shall be it from whence came. execution,’ tion of it carried into addition to harmony clearly with error, The result is both prohibition appeal and writ Les purpose statute. letter and the strongly suppress of an intent to indicative page Co., supra, F.Supp. Floyd controversy by v. Gas lie prolongation further process." whatever And court’s latest pronouncement subject on the in Metro- present when fed- At a time like politan Casualty Stevens, cases eral courts are overburdened with how 85 L.Ed. 1044 shows S.Ct. right import when the national rigidly purpose to.10 has been adhered diversity has grounds causes on move utility, Erie applied The district courts have likewise become of more than doubtful Tompkins, 304 reviewing powers, the statute their own R. R. Co. 1487, it and when 114 A.L.R. their attention L.Ed. has directed summary provisions strange should cava- declined seems this court assertedly thoughtful lierly reconsider or vacate so much erroneous turn its back on lay leading of remand. subversive precedent orders down rules The decision phase subject statute, merely it feels that is Ausbrooks v. because good “justice con- Co., particular Western Telegraph D.C., Union 282 this case require “manifest error” be F. Judge 734 where science” Sanford held certainty errors would remand, his The “having propria ex corrected. causes, many of vigore reinvested the State court with occur in the remand obvious, was a jurisdiction, perhaps necessarily ju- flagrant terminated them Congress when indifference to general pow- risdiction matter court.” Congress statute, nor did er of sub- enacted the vacate orders at Cir., binding F.2d A.L.R. of a remand order effect holding filing has been crit cannot of the latter case sec defeated of a petition icized, Moulding-Brownell Corp. v. ond see for removal ground presented Sullivan, Cir., 114 7 92 F.2d A.L. in the first. St. 1471; Zumwalt, Ry. McLean, Co. 9 Paul & R. Borden v. C. Co. v. Cir., 2 Consult case note to 27 Mc 120 F.2d S.Ct. 69. L.Ed. Laughlin Hallowell, Zumwalt in Harvard Law Borden v. Bros. v. December, p. for Vol. Review L.Ed. 835. 10 There have been but few cases rehearing petition peremptory for was filed which the nature the stat- entry eight days notably disregarded, after the remand or- ute has been Floyd Smith, of Leslie the later case Travelers’ der. Protective Ass’n v. days Cir., filed after Gas Co. it was F.2d 511 and Bankers Securities five Corp. Equities Corp., mand. Insurance The con-

cern itself with their correction. remand cern it manifested was order, wrong right, should sum- whether marily end the matter. be- extend principles now announced yond exigencies present case. question important has this circuit an put litigation large, leaving it future circumstance to fix of time and the limits beyond may be at last remands said holding invites to have become final. orders, petitions rehearing for injurious delays thereto. with the incident possibilities of conflict It creates new judges the state and field where of both assiduously systems federal labored introduces And it to eliminate conflict. confusion similar of doubt and elements of review. elsewhere the field judgment I should be reversed think to reinstate the order of re- with directions mand. CO.,

SMITH v. ROYAL INS. Limited. No. 9850. Appeals, Circuit Ninth Circuit. Jan. Rehearing Denied March Hanley, A. B. Bianchi and M. James Francisco, Cal., appellant. both of San for Levit, Percy & Long, V. Long Bert W.

Levit, Levit, William H. all of San Francisco, Cal., appellee. DENMAN, MATHEWS, Before HEALY, Judges. Circuit

HEALY, Judge. Circuit suit, which policy This is on a valued upon of fire insurance appellant’s “lease- property, hold interest” in certain is here fourth prior appeals for the time.1 The question

were concerned with whether alleged proved an in- surable interest of kind described in his namely, an estate in the policy, a leasehold. that nature of On the appeal last we held had established his case in previous opinions reported Cir., 1The are 111 F.2d and 9 130 A.L.R. Cir., 157; Cir., 77 F.2d 93 F.2d notes any helpless to correct own error in its Proceed page 185 of the appearing on sion any manner or under circumstances. C., Washington, D. Institute at ings of 1938,.as by the published 6, 7, v. Western Union Ausbrooks Tele- October Association, support Bar Co., D.C.Tenn., graph American F. to the State be remanded statute, 71, pro- 28 U.S.C.A. § came, such remand whence from : vides “ * * * immediately carried into execu- any be shall' Whenever cause shall be appeal writ of' error from tion, or any and no from removed State court into court so re- the district States, decision district of the United manding shall be allowed. such district shall decide that >> improperly removed,

Notes

[*]

[*] cause was

[*] and power practicable” “within reasonable of courts as or theory of the inherent time”. errors. their own correct by construction, given generally as pointed out in discussion “The As ‘immediately’ affect, inter- courts to the words Institute, 60 does not this Rule ‘forthwith,’ contracts power they occur in with, when the common-law curtail fere courts, empha- statutes, is, referred or in the act but as of the federal conven- performed should within such sized, theirs be power, the broad requisite. reasonably ient law, time as with situations deal the common ” * * * Pifer, Ind. conscience, re- Martin v. where, justice good manifest er- 248. granted lief should “ * ** courts. ror, inherent remained ‘immediately’ soon ‘as means practicable,’ proper conversely power judgments was it is vacate “The practicable’ mean to construe ‘as conceded the common law all soon as ” * * * proper ‘immediately.’ Chicago, it is B. & limitations courts. Within Q. power County, in all of record R. v. 72 Neb. inherent R. Richardson courts independent may of statute. It 100 N.W. “ * * * * * * of its own the court either exercised ‘immediately’ does suggestion by a on motion motion or instantaneously requires not mean ac- but ”* * * party person. or interested tion taken time. to be within a reasonable

Case Details

Case Name: Bucy v. Nevada Const. Co.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 26, 1942

Citation: 125 F.2d 213

Docket Number: 9796

Court Abbreviation: 9th Cir.