HULTBERG v. ANDERSON et al.; SAME v. CHYTRAUS, 214 F. 349

SEAMAN, Circuit Judge. The appellant, Hultberg, is the complainant in a creditor’s bill, filed in the District Court of the United States for the District of Kansas, against the Andersons, husband and wife, wherein that court appointed a special examiner to take testimony in the cause. Such examiner was proceeding to take testimony in Chicago, when the appellee (one of the attorneys for the Andersons) was called as a witness on behalf of the appellant. On questions propounded to the witness, in reference to the present whereabouts of the An-dersons, he refused to answer, stating two grounds of objection: (

a) That of privilege as their attorney, and (

b) immateriality of the questions. The examiner certified the matter to the District Court of the United States for the Northern District of Illinois, and the appellant petitioned that court for ancillary relief in the premises, which was granted, after a hearing, in the entry of a rule against the witness to -answer the questions certified. Recalled before the examiner, the witness persisted in his refusal, and the District Court, on petition filed by the appellant, entered a rule against the witness to show cause why he should not be punished for contempt.

The hearing, however, upon the petition and an answer filed on the part of the witness, resulted in an order that the rule be “discharged at the costs of the petitioner”; .'and this appeal is brought by the petitioner from the order so made, with the right of appeal seemingly unquestioned. On the hearing of the appeal in this court, the arguments of counsel, both oral and printed, were entirely directed to their respective controversies upon the merits of the proceeding, without reference to the question of appealability of the order, until attention was called to that feature by inquiries from the bench.

Pursuant to direction of the court, however, briefs have been submitted thereupon, and we take up the jurisdictional inquiry, which can neither be waived by counsel nor disregarded by the court, as appears to be suggested in both briefs. Without appellate jurisdiction over the subject-matter in controversy, no ruling or intimation of opinion upon the merits involved therein is authorized. The right of review by writ of error or appeal is prescribed by acts of Congress, and from the earliest Judiciary Acts such review by the Supreme Court has been limited to the final judgments or decrees of trial courts.

In the act creating the Circuit Court of Appeals “final decisions” were named as the limitation; but its meaning is well settled to be identical with the terms final judgments or decrees above mentioned, so that, with the exception of appeals authorized therein from specified interlocutory orders for injunctions and receiverships, this fundamental requirement of finality is alike in both appellate jurisdictions, and the tests of finality as settled for review by the Supreme Court are equally applicable to this court. Loveland’s App. Jur. Fed. Courts, § 39.

The main difficulty, if not the only one, in the way of its ascertainment, has arisen in equity and admiralty causes, wherein decrees are commonly granted for various purposes during the progress oi^the cause, in advance of complete relief, and the decisions have been numerous and not entirely harmonious (McGourkey v. Toledo & O. Ry., 146 U. S. 536, 545, 13 Sup. Ct. 170, 36 L. Ed. 1079), upon the question whether various decrees so entered were in reality final, within the meaning of the limitation, or merely interlocutory and thus not appealable.

All the authorities, however, concur in the elementary rule that appeals are not entertainable from such orders or decrees when they are distinguishable as merely interlocutory. We do not understand counsel for the appellant to controvert this undoubted general rule, but that the contention is, in effect, that proceedings to punish for contempt, however interlocutory in their inception, are excepted from such rule, and that the ultimate order thereupon is recognized by the authorities as a finalty for the purposes of review.

So, if it appears that both the proceedings and the order sought to be reviewed are unmistakably interlocutory, and thus not within the exceptional character of commitments for contempt, no doubt is entertainable that this appeal must be dismissed. That the proceedings before the examiner and in the District Court were interlocutory in their entire nature is unquestionable.

As aptly defined (see 2 Daniell’s Chancery PI. & Pr. c. 35): “An interlocutory application is a request made to the court for its interference in a matter arising in the progress of a cause, * * * and may relate to any matter upon which the interference of the court or judge is required, before or in consequence of a decree or order” in the cause.

Thus the appellant’s successive applications to the District Court invoked its exercise of jurisdiction, purely ancillary, for the single purpose of interlocutory relief in aid of the bill filed in the Kansas district to require the witness to answer the questions submitted.

It may be conceded that inconsistency appears between the ruling upon the one branch, requiring the answers, and the other denying enforcement of the prior order, but we believe both to be alike interlocutory of the single suit; and, furthermore, were such characterization of either order deemed otherwise questionable, we understand the rule of Alexander v. United States, 201 U. S. 117, 121, 26 Sup. Ct. 356, 50 L. Ed. 686, and other references in proceedings to charge contempt, to be decisive thereof.

The order appealed from not only constitutes a refusal to exercise the power to punish the witness for contempt, but has the effect of overruling the first order, on reconsideration of the application for intervention, and must be so construed, notwithstanding recitals in the order which may indicate that the presiding judge entertained some other view for his ruling.

The decisions upon reviewability of orders punishing for contempt are numerous — mainly arising during the past twenty years, after appellate jurisdiction was conferred over criminal cases — and all are instructive in marking their distinction from orders which are merely interlocutory, although most if not all of these contempt orders arose through interlocutory proceedings, and in several of the cases the contempt also arose in such proceedings. In the early cases of Ex parte Kearney, 7 Wheat. 39, 5 D. Ed. 391, and New Orleans v. Steamship Co., 20 Wall. 387, 22 D.

Ed. 354, review of contempt orders was .denied, because “contempt of court is a specific criminal offense,” and no review of criminal cases was then authorized. The doctrine is now established, however, that punitive contempt orders are criminal in their nature, arising in the exercise of the inherent power of the court to preserve its authority and punish violations thereof — either by parties to the suit or third parties withjn cognizance of the court — and are thus independent and final, not interlocutory, and subject to review in matters of law alone, by writ of error. Bessette v. W. B. Conkey Co., 194 U.

S. 324, 326, 335, 24 Sup. Ct. 665, 48 L. Ed. 997; Matter of Christensen Eng. Co., 194 U. S. 458, 24 Sup. Ct. 729, 48 E. Ed. 1072; Nelson v. United States, 201 U. S. 92, 26 Sup. Ct. 358, 50 E. Ed. 673; Alexander v. United States, 201 U. S. 117, 26 Sup. Ct. 356, 50 L. Ed. 686; Doyle v. London Guarantee Co., 204 U. S. 599, 27 Sup. Ct. 313, 51 L. Ed. 641; Webster Coal Co. v. Cassatt, 207 U. S. 181, 28 Sup. Ct. 108, 52 E. Ed. 160; Gompers v. Buck Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Re Merchants’ Stock & Grain Co., 223 U. S. 639, 32 Sup. Ct. 339, 56 L.

Ed. 584; Grant v. United States, 227 U. S. 74, 33 Sup. Ct. 190, 57 L. Ed. 423. Contempt orders which are purely remedial as between the parties to the suit, remain interlocutory and are not reviewable, except under an appeal from the final decree. Bessette v. W. B. Conkey Co., supra; Re Merchants’ Stock & Grain Co., supra. Thus, were the appellant’s contention tenable for

interpretation of the present order, no review would be authorized on his appeal, whether the application for enforcement invoked remedial or punitive action of the court; but our view of its interlocutory character requires dismissal of the appeal on that ground. In Alexander v. United States, supra, the appeal from an order requiring the witness to answer questions was dismissed on like view of the order as purely interlocutory, under like application for the exercise of ancillary jurisdiction to that end.

Definition of the proceedings was directly involved for decision, and for such definition the opinion aptly states the distinction above mentioned between interlocutory proceedings or orders and orders punishing for contempt, in substance: That prior to the exercise by the court of its power to punish for contempt, “the proceedings are interlocutory in the original suit”; but, when the power is exercised, “the matter becomes personal to the witness,” giving rise to another case in which the witness becomes a party, and the order is final as to him. This distinction is observed in Nelson v.

United States, supra, and in earlier cases, and reaffirmed in Webster Coal Co. v. Cassatt, 207 U. S. 181, 186, 28 Sup. Ct. 108, 52 L. Ed. 160. So, whatever may have been the ground for denial of the application to commit the appellee for contempt, it is obvious that the power of the court to that end was not exercised in the order denying such application. On behalf of the appellant it is urged that no remedy is open without review of the present order, to obtain the information needful for prosecution of his suit.

This may be true — as may be said of other interlocutory proceedings of equal or greater importance to the parties — but the remedy in such case, as said by Mr. Justice Storey, in Ex parte Kearney, supra, is for “the Legislature^ and is not to be devised by courts of justice.” Moreover, it may well be remarked, as to this contention, that throughout the first century of our federal system no criminal cases and only a limited class of civil cases were reviewable.

The acts extending review to all final decisions were of undoubted benefit, but extensions to include all interlocutory orders would not seem either practicable or desirable.