267 F. 554 | 9th Cir. | 1920
Lead Opinion
The appellant brought a suit in equity in the circuit court of the territoiy of Hawaii to reform a policy issued by the New York Fife Insurance Company on the life of her husband and to obtain a decree that the insurance company pay her the amount of tire policy, and that the appellee Benson, Smith & Co., Lim
“Tlio contention, however, is that the judgment below is final for the purpose of review by this court, because, when the opinion of the Supreme Court of Louisiana is carefully weighed, it will be found that that court practically finally disposed adversely to the title of the plaintiff of tlie substantial part of the lands involved in the suit, and hence that the court, in roman cling the cause for further proceedings, did so only as to other lands. But, conceding this to he true, it does not justify the claim based on if. * * * The rule established by the authorities to which we have referred is that on the question of finality the form of the judgment is controlling, and hence that this court cannot, for the purpose of determining whether its reviewing power exists, be called upon to disregard the form of the judgment in order to ascertain whether a judgment, which is in form not final, might by applying tlie state law be treated as final in character.”
In Bruce v. Tobin, 245 U. S. 18, 38 Sup. Ct. 7, 62 L. Ed. 123, in reaffirming that rule, it was said:
“It may he indeed said that, although the case was remanded by the court below for a new trial, the action of the court was in a sense final, because it determined the ultimate right of tlie father to recover and the general principles by which (hat right was to be measured. But that contention is not opeii, as it was settled under section 709, Rev. Slats, (section 287, Judicial Code), that the finality contemplated was to be determined by the face of the record and the formal character of the judgment rendered.”
There are other decisions of the Supreme Court to the same effect, cases in which the cmtrt has recognized a distinction between a judgment which reverses that of the court below and remands the case for further proceeding and a judgment which reverses and remands, directing the entry of a specified judgment, as in Mower v. Fletcher, 114 U. S. 127, 5 Sup. Ct. 799, 29 L. Ed. 117. Said (he court in that case:
“The litigation is ended, and the rights of the parties on the merits have been fully determined. Nothing remains to be done but to require the inferior court to perform the ministerial act of entering the judgments in that court which have been ordered. This is but carrying the judgment of the Supreme Cout, which has been rendered into execution. Nothing is left to the judicial discretion of tlie court below.”
The appeal is dismissed.
Rehearing
On Petition for Rehearing.
“On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the record before the court, without regard to technical errors, defects or exceptions which do not affect the substantial rights of the parties.”
The contention ignores the language and purpose of the amendment. The amendment relates only to the hearing and determination of a case which is pending in a court. It has no reference to the preliminary steps by which a case is brought into an appellate court, nor does it affect the question of the jurisdiction of a court, or enlarge the power of an appellate court to entertain appeals or writs of error. It does not make appealable a judgment which, before the enactment of the amendment, was not appealable. It deals only with the examination of a record which is lawfully before a court. We realize the hardship of the rule which requires the dismissal of this appeal, but we hold that this court is bound by the decisions of the Supreme Court which are cited in the opinion.
The petition for rehearing is denied.