128 F.2d 23 | D.C. Cir. | 1942
Lead Opinion
This is an appeal from interlocutory orders of the District Court of the United States for the District of Columbia of May 8 and 9, 1941. The nature of these orders will appear more particularly below. The appeals are taken under D.C.Code (1940) § 17 — 101,
On October 21, 1939, the landlord and
The appellants then took steps directed toward regaining possession pendente lite of the premises involved in the litigation. First, on January 14, 1941, after the receipt by the District Court of the mandate of this court, they applied to Judge Golds-borough for restoration of possession. He denied their. application. Then on January 22 they applied to this court for a writ of mandamus to compel the trial court to restore them to possession. This court denied that application. Then on March 24 the appellants obtained an order of restitution from Judge Jennings Bailey of the District Court. Judge Bailey made that order under the view that possession of the premises in question had been .restored to the appellee by virtue of the District Court order of December 8, 1939. Upon being informed later that the appel-lee had been placed in possession of the premises through writ of restitution issued upon the Municipal Court judgment of October 21, 1939, Judge Bailey, on May 8, 1941, acting on a motion addressed to that end, ordered vacated his order of restitution of March 24 — which had not yet been executed- While that motion to vacate was pending the appellants, on April 22, moved before Judge Daniel W. O’Don-oghue of the District Court for a preliminary injunction “to restore the status
The instant appeal is taken as of right from the interlocutory orders of May 8 and 9, 1941.
We think that under New Negro Alliance v. Harry Kaufman, Inc., 1935, 64 App.D.C. 362, 78 F.2d 415, Mellon v. Mertz, 1929, 58 App.D.C. 302, 30 F.2d 311, Chas. McCaul Co. v. Harr, 1921, 51 App.D.C. 111, 276 F. 633, and Hayes v. Conger, 1911, 36 App.D.C. 202, and the construction they put upon D.C.Code (1940) § 17 — 101,
The contention is made that the possession which the appellee Berens got under the writ of restitution issued out of the Municipal Court must be considered a wrongful possession, one infected with the error committed by Judge Goldsborough when on December 8, 1939, he failed to exercise his discretion and dismissed the injunction suit and dissolved the restraining order and ordered the appellee to be allowed to recover his property. Since this possession was wrongful — so the contention goes — it was not a possession which can in law be recognized, and therefore the possession must be considered to have remained in the appellants during all of the time subsequent to Judge Goldsborough’s dissolution of the restraining order and therefore to have gone out of the appellants only by virtue of the orders of Judge Bailey and Judge O’Donoghue which are appealed from. We think this contention not supportable: To begin with it is to be noted that the possession received by the appellee Berens was received by virtue of the Municipal Court writ of restitution, not by virtue of the . order of December 8, 1939, dismissing the injunction suit and dissolving the restraining order. It is true that the order of dismissal in terms provided for restoration of the property to the appellee, but in legal effect it merely removed the restraint which had been put by the District Court upon the Municipal
The further contention is made that even if the possession of the appellee Berens- was .rightful pending the appeal from Judge Goldsborough’s order of December 8, .1939, it became wrongful immediately upon reversal of that order so that at that moment possession must be considered to have been again and rightfully in the appellants. But this further contention is also, we think, not supportable. “A suit to restrain an official [or court] from doing a particular thing cannot be revised on appeal into an action ■ to compel the undoing of the act sought to be restrained. A mandatory decree cannot be passed upon a bill the sole object and prayer of which is for restraint. ‘The things sought to be prohibited have been done, and cannot be undone by any order of this court or the court below.’ . The bill having been dismissed, and no action taken to preserve the status of the case made by the bill pending appeal, this court. [and the court below] is without jurisdiction to revive it and grant relief either general or special.” (Shaw v. Lane, 47 App.D.C. at pages 173, 174.)
It is suggested that if a plaintiff suing to obtain possession of premises presently occupied by a defendant should, pending the trial, physically oust the defendant and then obtain a court order preserving pen-dente lite the possession thus obtained, such an order should be appealable even though it did not change the possession which existed immediately before the order, i. e., the possession wrongfully gained after suit brought But, since in the instant case the possession of. the appellee Berens under the Municipal Court judgment was obtained after termination of the injunction suit in the trial court and was, as above explained, rightful, there is no analogy between that possession and a possession wrongfully obtained during a trial. Therefore, no order preserving such a wrongful possession is before us, and it will be time enough to rule upon the ap-pealability of such an order when such a one is issued (it is difficult to imagine the issuance of one under the circumstances supposed) and an appeal therefrom taken.
Since we answer the, first question in this case in the negative it is not necessary to discuss or answer the second. The orders not being appealable, we have no jurisdiction to pass upon their merits, and the appeal is accordingly Dismissed.
Act of Feb. 9, 1893, 27 Stat. 435, ch. 74, § 7; Act of Mar. 3, 1901, 31 Stat. 1225, ch. 854, J 226; Act of Mar. 3, 1921, 41 Stat. 1312, eh. 125, § 12.
As will appear below each of these orders was of the same legal effect and there seems therefore no point in an appeal from the second. Moreover a single appeal from two different orders is, so far as we know, without precedent. But no point is made of this by the ap-pellee.
At the time of these decisions D.O. Code (1929) tit. 18, § 26.
It appears from the affidavits printed in the appendix to the appellants' brief that as a result of acquiescence by one William R. Boger in Judge Bailey’s order of March 24 the appellant James J. Laughlin on April 4, 1941, moved personal effects into a spare room in the premises in question and was given a key to the premises, Boger, it appears, was himself in possession under the ap-pellee Berens. But nothing is said in the briefs concerning this entry by Laughlin and accordingly it is assumed that the appellants base none of their contentions on appeal upon it.
Dissenting Opinion
(dissenting).
I think the orders are appealable and should be affirmed.
Section 17 — 101 gives an appeal from interlocutory orders “whereby the possession of property is changed or affected.” The order’s substantive effect, not its negative form, is decisive.
When reversal occurred, the color of right dissolved. All legal foundation was stricken from the entire order, including dissolution of the restraining order. That was part and parcel, as well as a necessary incident, of the order of dismissal, made for the same reason and invalidated for the same vice. Appellee remained in occupancy notwithstanding the reversal, but thence forward without even color of right of. possession until the appealed orders were entered.
In this situation and without more, that is, without a further contrary exercise of the court’s discretion, appellants became entitled to “reinstatement,” “restoration,” or “continuance” of the restraining order, however the matter may be called. In substantive terms, the reversal entitled them to possession both in law and in fact, in accordance with the usual rule, on which they rely, that reversal requires restoration of property of which the order reversed has deprived the appellant.
But appellants’ claim overshoots the mark. Reversal without more entitled them to restoration to occupancy in accordance with their then existing right of possession. But it did not deprive the trial court of discretion to alter the possession by a
The suit is already long drawn out. The litigation has consumed much time and energy in three courts, some of it in mul-tiplicitous applications for relief on interlocutory matters. There have been two appeals and the end is not in sight. It may not be amiss to state the hope that the next one will be on the merits and final.
Since, in my view, the orders in appeal had affirmative effect, though they were negative in form, it is not necessary to reconsider our previous decisions, cited by the majority, in light of the reversal of the formerly prevailing “negative order” rule as to jurisdiction to review orders of the Interstate Commerce Corn-mission. Cf. Rochester Telephone Corp. v. United States, 1939, 307 U.S. 125, 140-143, 59 S.Ct. 754, 83 L.Ed. 1147.
Appellants mads other applications for relief which were denied but not appealed. However, no point is made that the failure to appeal these orders foreclosed consideration on appeal of those
The situation was not greatly different after the reversal from one in which a new status quo would be created during the litigation by self-help. It would seem that an order denying relief from such a status quo, though negative in form, would be appealable within Section 17 — 101 as changing the right of possession, though it would not change the actual occupancy.
Shaw v. Lane, 1917, 47 App.D.C. 170, 173-174, is not in point. The suit was for injunction to restrain the Secretary of the Interior from approving and delivering certain mineral leases. The trial court dismissed the bill. Pending appeal the Secretary approved and delivered the loases. This court held that the Secretary’s action rendered the case moot and dismissed the appeal. There was no question of abuse of discretion or failure to exercise it, or of effect of reversal upon rights of possession pendente lite.
Sufficient perhaps to prevent them from being trespassers before the reversal or, possibly, liable for rent during the period of appeal.
Cf. Wilson v. Newburgh, 1914, 42 App.D.C. 407; Gregg v. Forsyth, 1865, 2 Wall., U.S., 56, 17 L.Ed. 782; Ferran v. Mulcrevy, 1935, 9 Cal.App.2d 129, 48 P.2d 984; Sleeper v. Killion, 1917, 182 Iowa 245, 164 N.W. 241; Manes v. J. I. Case Threshing Machine Co., Tex.Civ.App.1927, 295 S.W. 281; 5 C.J.S., Appeal and Error, § 1950, p. 1476.
McMahon v. Cooper, 1913, 23 Idaho 413, 130 P. 456; Brady v. Carteret Realty Co., 1905, 67 N.J.Eq. 641, 60 A. 938, 110 Am.St.Rep. 502, 3 Ann.Cas. 421; Frisby v. Rockins, Tex.Civ.App. 1937, 105 S.W.2d 362; Lane v. Kempner, Tex.Civ.App.1916, 184 S.W. 1090; cf. Forbes v. Hall, 1897, 102 Ga. 47, 28 S.E. 915, 66 Am.St.Rep. 152; Kester v. Schuldt, 1906, 11 Idaho 663, 85 P. 974; Cline Piano Co. v. Sherwood, 1910, 57 Wash. 239, 106 P. 742; Atlantic Coast Line R. R. v. Florida, 1935, 295 U.S. 301, 310, 55 S.Ct. 713, 79 L.Ed. 1451; Jacobs v. Jacobs, 1901, 62 S.W. 263, 23 Ky.Law Rep. 186; Wenzel v. Milbury, 1901, 93 Md. 427, 49 A. 618; Logan v. Yoes, 1911, 30 Okl. 65, 118 P. 353. See also Buffington v. Harvey, 1877, 95 U.S. 99, 24 L.Ed. 381; Indiana Quartered Oak Co. v. Federal Trade Comm., 2 Cir., 1932, 58 F.2d 182.