In re Dennett

215 F. 673 | 9th Cir. | 1914

PER CURIAM.

[ 1 ] It is a rule of law long established that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps have been taken during the term by motion or otherwise to modify or correct them. Bronson v. Schulten, 104 U. S. 410, 415, 26 L. Ed. 797; Sibbald v. United States, 12 Pet. 487, 491, 9 L. Ed. 1167.

A court, in assuming to modify, annul, or set aside a judgment or decree after the term in which it is rendered, is in general parlance considered to have exceeded its jurisdiction. Such excess of jurisdiction is, no doubt, the subject of review by writ of error or appeal. In a case of that kind, it was said by the Supreme Court:

'If, on the other hand, the order made was without jurisdiction on the part of the court making it. then it is a proceeding which must be the subject of review by an appellate court.” Phillips v. Negley, 117 U. S. 665, 671, 672, 6 Sup. Ct. 901, 903 (29 L. Ed. 1013).

As a general rule mandamus will not lie where there exists an adequate legal remedy; that is, if the legal remedy is as specific, prompt, and competent to afford relief upon the very subject of controversy as mandamus. Under federal practice the writ may be employed in aid of appellate jurisdiction, and the Circuit Court of Appeals is authorized to invoke its assistance in appropriate cases. The writ so employed extends to jurisdiction which might otherwise be defeated by the unauthorized action of the lower court, as well as to jurisdiction actually acquired. McClellan v. Carland, 217 U. S. 268, 279, 280, 30 Sup. Ct. 501, 54 L. Ed. 762.

Or, putting it in another way, the test of jurisdiction in aid of which the appellate court may issue writs of mandamus is not the actual prior exercise of the right by appeal or writ, of error, but the existence of the right to review by a challenge to the final decisions or otherwise of the cases or proceeding to which the applications for the writ relate. Barber Asphalt Pav. Co. v. Morris, 132 Fed. 945, 66 C. C. A. 55, 67 L. R. A. 761.

Mandamus will issue, therefore, by appellate jurisdiction to annul the acts of an inferior court, where such inferior court has acted wholly without its jurisdiction. Such a case is Ex parte Bradley, 7 Wall. 364, 377 (19 L. Ed. 214), the court saying:

“The ground of our decision upon this branch of the case is that the court below had no jurisdiction to disbar the relator tor a contempt committed before another court. * * * No amount of judicial discretion * * can supply a defect ar want of jurisdiction in the case. The subject-matter is not before it; the proceeding is coram non judice and void.”

The principle has been applied in cases where the inferior federal courts have assumed jurisdiction of removal causes, and acted beyond their power and judicial authority in so doing. Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667; Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386; In re Winn, 213 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873. In the first of those cases the court says of the writ:

“Its use has been very much extended in modern times, and now it may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do. It does not lie to control judicial discretion, except when that discretion has been abused; but it is a remedy when the case is outside of the exorcise of this discretion, and outside the jurisdiction of the court or officer to which or to whom the writ is addressed. One of its peculiar and more common uses is to restrain inferior courts and to keep them within their lawful bounds.”

In the last case cited the same principle is invoked, the court being careful at the same time to state the limitations governing the issuance of the writ in the following language:

“Mandamus, it is true, never lies wliere tlie party praying for it has another adequate remedy. The writ of mandamus was introduced to supplement the existing jurisdiction of the courts and to afford relief in extraordinary cases where the law presents no adequate remedy. * * * In these cases writs of mandamus must not be permitted to usurp the functions of writs of error or appeals, or to take their place where they offer an adequate remedy to the aggrieved party. It is only in cases where the record makes it clear, as a matter of law, that the Circuit Court was without jurisdiction to take any action whatever, that the writ of mandamus lies.”

In Ex parte Harding, 219 U. S. 363, 31 Sup. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392, the doctrine' as applied in this case (The Winn Case), and other similar cases, was limited in its proper application to causes where the record presents a total absence of jurisdiction involving no element of discretion. In that case the court goes into an elaborate and comprehensive review of the cases, such as Ex parte Hoard, 105 U. S. 578, 26 L. Ed. 1176, apparently holding a contrary view to the Winn Case, and other like cases, and criticises and limits in some respects the expressions of the court touching the province and application of the writ of mandamus, but still holds that all of the latter line of cases were rightly decided, upon the principle of a total absence of jurisdiction and involving no element of discretion.

In another removal cause (In re Metropolitan Trust Co., 218 U. S. 321, 31 Sup. Ct. 20, 54 L. Ed. 1051), decided shortly prior to Ex parte Harding, but not mentioned in that case, in its review of the seemingly conflicting holdings of the court on the subject, the court awarded mandamus as an appropriate remedy. And the particular feature which seems to render it pertinent here is that the court exercised its authority to set aside a judgment rendered upon demurrer, after the term at which it was rendered, upon the erroneous idea that it was without jurisdiction in the first instance to sustain the removal, a motion having been interposed to remand. In its disposition of the case the court, speaking through Justice Hughes, says:

“Nor could the court exercise the general power which it possesses to modify or set aside its orders or decrees prior to the expiration of the term at which the final decree is entered; for in this case that term had ended before the motion was made”

—citing cases, and among them Ex parte Sibbald and Bronson v. Schulten, supra1 and concludes:

“When the motion was made, the court was without jurisdiction to vacate the decree. As the court, in granting the motion, exceeded its power, manda-, mus is' the appropriate remedy.”

There are two aspects upon which the court may have predicated lack of jurisdiction in the Circuit Court: First, in its want of power to act at all, the matter being within its discretion in the first instance whether to retain or remand the cause; and, second, in its' want of authority to annul a judgment or decree after the term in which it was rendered. The court having taken the pains, however, to state the rule, in the course of the disposal of the case, which limits the power of the court to set aside its own decree to the term in which it was rendered, we assume that by so emphasizing the doctrine it based its decision largely, if not wholly, upon the lack of power in the Circuit Court after the term had ended, and hence held that in such a case mandamus was the proper remedy. The holding must have been so made, notwithstanding the rule announced in Phillips v. Negley, supra, that such a judgment was subject to review on appeal or writ of error.

[2] Based upon this case and the previous authorities cited, and the discussions as to when the remedy by mandamus in aid of appellate jurisdiction is available, we are impressed that where a court has attempted, subsequent to the term at which a judgment or decree is rendered, to set aside or annul such judgment or decree, it presents a case where the court has acted wholly without jurisdiction or power in the premises, and its act in that respect is void, and that mandamus will lie to correct the error. But as this is one of the controlling questions in the case, and the cause having been presented ex parte, we withhold our final judgment touching it until opposing counsel can be heard oil a rule to show cause.

The District Court was of the view that the decree of February 27, 1913, was entered without jurisdiction, because outside of and beyond the issues made in the pleadings in the original cause. Of this we express no opinion; neither do we indicate any opinion as to whether the cause was still in the breast of the court when the order or decree of March 12, 1914, was rendered.

Upon the showing made, however, we are of the view that the order to show cause should be issued as prayed. All parties can then be heard, and the matter fully presented.