Rederiaktiebolaget Amie v. Universal Transp. Co.

245 F. 282 | 2d Cir. | 1917

HOUGH, Circuit Judge.

This motion having been duly made before me, it is thought to be my duty to hear it. That, however, does not assume that I have, therefore, any power to grant the relief moved for.

[1] Whether a single judge of the Court of Appeals has power to regulate procedure on appeal in the way here demanded is not plain on the face of the statute; yet this much may be spelled out. Appeals and writs of error are to be taken to the Circuit Court of Appeals in the manner practiced in the Supreme Court before 1891. In similar proceedings in the Supreme Court in Peugh v. Davis, 110 U. S. 227, 4 Sup. Ct. 17, 28 L. Ed. 127, it was held that where an appeal bad been allowed, but no security taken, a judge of the appellate court might take it more than 60 days after decree entered. No reason appears why the same might not he done on a writ of error.

In this case a writ was allowed and citation signed, and further an order was entered in the District Court fixing the amount of the bond to stay execution (commonly called a supersedeas bond); but the question remains, whether noncompliance with that order prevented the writ and citation from having their usual effect. The result of plaintiff in error’s argument is that noncompliance with the order of L. Hand, J., leaves the writ and citation operative, and entitles this court or a judge thereof to fix the bond, even at a figure utterly variant from that directed by the court below.

[2, 3] A writ of error operates proprio vigore to remove the record; a citation gives notice to the parties and brings them into court. Atherton v. Fowler, 91 U. S. 143, 23 L. Ed. 265; Cohen v. Virginia, 6 Wheat. 264, 5 L. Ed. 257. There is no doubt that (so far as statute is concerned) the plaintiff in error may review by writ a judgment at law, without seeking to stay execution on the judgment; i. e., without supersedeas. It therefore appears clear that, but for the operation of Supreme Court rule 29 (32 Sup. Ct. xii), of which our rule 13 (150 Fed. xxviii, 79 C. C. A. xxviii) is a copy, a writ may be perfected and the cause heard regularly without any security at all, except for costs, under R. S. § 1000 (Comp. St. 1916, § 1660).

[4] The nature of supersedeas and the origin of our use of the word is fully shown in Omaha Hotel Co. v. Kountze, 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609. Rule 29 was passed cotemporaneously with the decision in Rubber Co. v. Goodyear, 6 Wall. 153, 18 L. Ed. 762 (see this stated in Jerome v. McCarter, 21 Wall. 17, 30, 22 L. Ed. 515), and in order to quiet disputes which had prevailed in the Supreme Court itself as to whether the rule of Catlett v. Brodie, 9 Wheat. 553, 6 L. Ed. 158 (an action at law), applied to equity suits, and especially to foreclosures, ejectments, etc. The cases heretofore cited show directly or by reference the history of this difference of opinion concerning what is now section 1000, R. S., and was originally a section of the Judiciary Act of 1789. In the condition of practice created by rule 29, Brown v. McConnell, 124 U. S. 489, 8 Sup. Ct. 559, 31 L. Ed. 495, was decided, pointing out that a writ of error is process of the appellate court, while an appeal may be taken without any Supreme Court action at all, and further that security (which is what in our phrase “works a supersedeas”) is given under R. S. § 1000, on signing citation, and that failure to take it is irregularity only, not “necessarily avoiding citation,” and not affecting jurisdiction.

We must construe rule 13, C. C. A., as the Supreme Court has done, with rule 29, S. C. Under such construction, I think that the writ and citation herein have duly removed the record to and brought the parties into this, court without any supersedeas bond; that such lack does not affect our jurisdiction, but is an irregularity, and leaves it within the power of any Circuit Judge of the circuit, or of the Circuit Court of Appeals itself, to fix such bond, even after the 60-day period of R. S. § 1007 (Comp. St. 1916, §' 1666), has expired. What, under rule 13, the court would, should, or could do with the case, if no full bond is ever given, is not before me, and I express no opinion. Such opinion would depend (1) on a construction of rule 13 not now involved, and (2) on the power of this court to pass rule 13, or of the Supreme Court to pass rule 29, and in effect (perhaps) refuse longer to hear appeals and writs in which no security exists, or is given, except for costs.

[5] The first inquiry here is: How did this irregularity which gives me jurisdiction occur? None was intended, for when L. Hand, J., signed writ and citation, he fixed the amount of the supersedeas bond by formal order, which these plaintiffs in error have refused to obey. This sort of order is the common practice, and judges assume that the order entered is enough; never before have I known a citation availed of without complying with the cotemporaneous order as to security.

The reason for this singularity is that Hand, J.’s order is said to be so plainly in the face of rule 13 as to be null, wherefore in effect no lawful order was made, and this application is made on a (legally) clean slate. The argument for this application is not put just that way, but such is its necessary logical implication. I shall not stop to discuss the admissibility of such contention. I am satisfied of my jurisdiction, and there are two reasons why the action of Hand, J., will stand so far as I am concerned:

(1) His relation to this case on writ is just the same as mine might have been. I could have allowed the writ, signed the citation, and taken the security; so could an}r other Circuit Judge or District Judge sitting in the Southern district of New York. Plaintiff in error chose to go to Judge Hand, and he made decision. As matter of discretion and of law I would refuse to review his action when sitting alone. Plaintiff in error should take nothing by the fact that the citation was signed, without actually seeing the bond, for it is beyond all doubt that such actual production of a “good and sufficient” bond might have been insisted on as strict matter of law, before any judge affixed his name to any citation.

[6, 7] (2) I agree with Hand, J., as to the construction of rule 13. This is an action at law in which an attachment issued. There was personal service of defendant below, or its equivalent; therefore the attachment was no more than mesne process and the attached property only security (so far as it goes) for a judgment in personam. The attached property was whatever defendant below owned in a ship, over and above a maritime lien-winch has now ripened into a final decree for about one-third of the value of the vessel. The ship was discharged both of the maritime lien and from, the attachment herein by the execution and filing of one rather hybrid document for her total value. In form that document is a stipulation for value, and from its tenor I think it clear that it first secures the maritime lien, and junior to that lieu the attachment and ensuing judgment pro tanto.

Put the usual clauses of an admiralty stipulation apply to both the admiralty case and common-law action; it is a continuing security in both trial and appellate courts, and is not collectible after appeal or writ taken until the appellate court has spoken favorably to libelants and original plaintiffs. Therefore here by an unusual but clear undertaking defendants below have given partial security,- — the action otherwise is an ordinary common-law suit in personam (Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931), and not one in which" “the property in controversy necessarily follows the suit.” That phrase (even without the illustrations given by the rule itself) refers to suits seeking to recover specific property or adjudicate liens in or rights to some particular realty or chattels. This is no such case. Plaintiff below happened to attach a ship; he might as well have attached a credit or anything else belonging to his opponent — the warrant was general; the ship accidental.

The result is that the order of Hand, J., was right. Defendant in error has the right to issue execution as therein permitted. Such right will be enjoined if plaintiff in error completes its security within 10 days from filing order hereon. Security is fixed at the figure named in Hand, J.’s order. New order filed herewith.

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other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes