Emery v. Central Trust & Safe Deposit Co., No. 2,292

No. 2,292 | 6th Cir. | May 6, 1913

KNAPPEN, Circuit Judge

(after stating the facts as above). [1] The motion to dismiss the appeal is grounded upon the proposition that the bill in question is merely a cross-bill, and thus only a part of the main litigation instituted by the filing of the original bills, and that a dismissal of the cross-bill was not a final decision of the case, and so is not appealable under section 128 of the Judicial Code. That the dismissal of a mere cross-bill is not appealable until final decree in the principal suit is determined by Winters v. Ethell, 132 U.S. 207" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/winters-v-ethell-92591?utm_source=webapp" opinion_id="92591">132 U. S. 207, 210, 10 Sup. Ct. 56, 33 L. Ed. 339" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/winters-v-ethell-92591?utm_source=webapp" opinion_id="92591">33 L. Ed. 339.

[2] Appellants base the right of appeal on section 129 of the Judicial Code, which gives an appeal from an order or decree in equity granting or refusing an injunction. They contend that the dismissal of the cross-bill was a denial of the requested stay of proceedings in the two original suits, and that an injunction was thus denied within the meaning of section 129 of the Code. We think an order refusing a stay of proceedings, made in a case other than that in which the stay is operative, amounts to a denial of an injunction, under the section invoked, but that, an order refusing a stay, made in the case in which the desired stay would operate, would not amount to such denial of injunction. Griesa v. Mutual Life Ins. Co. (C. C. A. 8th Cir.) 165 F. 48" court="8th Cir." date_filed="1908-11-19" href="https://app.midpage.ai/document/griesa-v-mutual-life-ins-co-of-new-york-8768982?utm_source=webapp" opinion_id="8768982">165 Fed. 48, 50, 91 C. C. A. 86. Is the bill before us a mere cross-bill, or is it substantially distinguishable from such a bill?

[3] Appellants have throughout treated the bill as a cross-bill. In the prayer for process it is so denominated; it was indorsed and filed as a “cross-bill”; its filing as such was allowed by the judge of the court below; the petition for appeal to this court is entitled in the original suits as consolidated, followed by the words, “Cross-Bill to Said Cases Consolidated as Above, No. 6746,” followed by the title of the cross-suit. The demurrer is in the petition for appeal referred to as “to the cross-bill,” and the order sustaining the demurrer as “dismissing said cross-bill”; the assignment of errors throughout speaks of the bill as a “cross-bill.” Its dominant note is clearly such.

Questions of technical nomenclature are not' specially helpful. Looking to matters of substance: The only prominent respects in which the bill we are considering adds to the case made by the answer to the original bills is, first, that in the cross-bill the alleged incorrectness and injustice of appellee’s construction of the basis of proper rent appraisal is set out by detailed statement of specific facts and considerations, instead of by general statement; and second, that affirmative relief is asked as already stated.

But the mere fact of prayer for affirmative relief does not make the bill other than a cross-bill, for at the time the bill was filed (whatever may be the case under the new general equity rule 30) the defendant could not obtain affirmative relief by answer unaided by cross-bill. 1 Bates, Fed. Eq. Procedure, § 377, and cases cited in note. It would seem open to appellants, under their answers to the original bills, to prove in detail all the facts alleged in the cross-bill, to the extent necessary to show actual conflict of claims as to the basis of rent appraisal, and actual conditions affecting the propriety of the respective bases and the alleged injustice of appellee’s contention. But if any doubt exists as to the sufficiency of the answer in that regard, amendment is of course open.

Again, comparing the bill in question with the bills in the original suits, it will be noted that the only difference which can be thought controlling is that appellants’ bill states the reason for the failure of the appraisers to agree, asserts the incorrectness of appellee’s construction of the basis of rent appraisal which should be adopted, denies the impracticability of agreement if appellants’ construction of proper rental basis is judicially determined, and asks the court to make’ such adjudication and to restrain further proceedings in the original suits to the extent necessary to permit such appraisement under the’ rules so fixed by the court.

The considerations to which we have referred are not overcome by the facts that diversity of citizenship conferred jurisdiction for an original bill, that there was prayer for process (which accorded with proper practice under cross-bills — see Washington Railroad v. Bradley, 10 Wall. 299, 302, 19 L. Ed. 894), or that the bill was filed under a separate number. Indeed, such method of filing would not unnaturally be had. in view of the fact that when the cross-bill was filed appellants’ petition for a consolidation of the two original suits and for repleading therein had not been granted.

Appellants cite a number of authorities which recognize a distinction between a pure cross-bill, filed simply as matter of defense, and' one seeking affirmative relief as to other matters than those brought: in suit by the bill. Some of these authorities hold (and this illustrates the independent nature of the latter class of cases) that a dismissal of the original bill would not, in such cases, operate to dismiss the cross-bill. We find nothing in the principle so announced opposed to the conception of the bill in question as a mere cross-bill, because we think the additional matter introduced by the cross-bill cannot properly be said to be matter collateral to that presented by the original bills, or that the affirmative relief sought is (to quote the language of appellants’ counsel) “so far severable from and independent of the suit brought by the original bills that the cross-cause is not to be considered as being the same 'cause as that in which the stay was to operate.” The character of cross-bill is not taken away by the mere statement therein of facts not contained in the original bill, so long as such additional facts are germane to the matters embraced in the original suit. The rule is that:

“If the plaintiff in the original bill does not fully state all the facts and circumstances connected with • the subject-matter in controversy, but omits facts which, if alleged, would show a right in a defendant, entitling him to relief against either the plaintiff or a codefendant, such omitted facts, however extended and voluminous, may be stated by the defendant in a cross-bill, and the appropriate relief demanded.” 1 Bates, Fed. E.q. Procedure, § 376.

It is true that the dismissal of a cross-bill is a denial of the affirmative relief asked by appellants, and if the present appeal is dismissed, and, on appeal taken after final decree on the merits, the appellate court should conclude that the cross-bill was improperly dismissed, it might be necessary to send the case back for further proofs and hearing. But such evil is necessarily incident to the dismissal of a cross-bill, in advance of final hearing on the merits of the original suit.

We are constrained to hold that the bill in question is in effect a pure cross-hill, that the stay asked for was a stay in a suit in which it would operate, and that its dismissal was therefore not the subject of appeal, in advance of final decision in the original suits.

The appeal is therefore dismissed.