BLYTHE CO. v. HINCKLEY et al., 111 F. 827

ROSS, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is contended on the part of the appellee Hinckley that the bill of review was filed too late. That objection was stated in several different forms in her amended demurrer.

Various other grounds of demurrer were also taken by her, all of which, in the opinion of the court sustaining the aménded demurrer and directing the dismissal of the bill, were sustained, except that of laches, which, in the opinion, was overruled; and for this reason it is claimed on the part of the appellant that this court cannot consider the objection that the bill of review was filed too late, inasmuch as there is no appeal by Florence Blythe Hinckley.

The answer to this is that there was no occasion for any appeal by her, for the reason that the decree was altogether in her favor; it having dismissed the bill of review, with costs in favor of the demurrant. In equity an appeal brings up the whole case, and any matter of law apparent upon the face of the bill of review is upon such an appeal open to the consideration of the court. If the decree dismissing the bill of review was right, it should be affirmed, regardless of the reasons assigned by the court for its judgment. Many a right judgment is given for a wrong reason.

The rule is well settled in courts of equity of the United States that a bill of review must ordinarily be filed within the time limited by statute for taking an appeal from the decree sought to be reviewed, where, as here, the review sought is not founded on matters discovered since the decree. Thomas v. Brockenbrough, 10 Wheat. 146, 6 L. Ed. 287; Whiting v. Bank, 13 Pet. 6, 10 L. Ed. 33; Kennedy v. Bank, 8 How. 586, 12 L. Ed. 1209; Clark v. Killian, 103 U. S. 766, 26 L. Ed. 607. It was recently ruled by this court in the case of Reed v. Stanley, 38 C. C.

A. 331, 97 Fed. 521, that where a party against whom a decree has been entered by a circuit court of equity has no right of appeal therefrom to the supreme court, either because no question appealable to that court was in issue, or because he failed to have a question of jurisdiction involved certified during the term at which the decree was entered, and his right of appeal is therefore limited to an appeal to the circuit court of appeals, the time within which he may file a bill of review is limited, by analogy, to the six months allowed by statute for taking an appeal to that court.

In the present instance the decree sought to be reviewed was entered on the 22d day of December, 1897. From that decree the present complainant, the Blythe Company, sought and was allowed an appeal to the supreme court on the 10th day of February, 1898, and from that decree the complainants in the original bill, John W. and Henry T. Blythe, also appealed to the supreme court. The appeal of the Blythe Company was dismissed by the supreme court January 9, 1899 (172 U. S. 644, 19 Sup. Ct. 873, 43 L. Ed. 1183), whose mandate was filed in the lower court on the 17th day of the following May.

The appeal of John W. and Henry T. Blythe was dismissed by the supreme court on the 3d day of April, 1899. 173 U. S. 501, 19 Sup. Ct. 497, 43 L. Ed. 783.' The bill of review was not filed until the 5th day of September, 1:899,—more than six months after the entry of the decree of December 22, 1897, and more than six months after the dismissal of the appeal of the Blythe Company by the supreme court, but less than six months after the filing of the supreme court’s mandate in the circuit court. Each of the appeals mentioned was dismissed for want of jurisdiction of the subject-matter by the supreme court.

The appeal 'from the decree of December 22, 1897, given by law to the aggrieved parties, was that provided for b)’' the act of March 3, 1891, creating the circuit courts of appeals, entitled “An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of.courts of the United States, and for other purposes,” and was limited by that act to six months from the entry of the decree.

If it be conceded that the time during which the attempted appeal of the Blythe Company from the decree to the supreme court was pending cannot be counted, still the fact remains that the judgment of the supreme court dismissing the appeal to it was entered more than six months prior to the filing in the court below of the bill of review. That judgment ended the appeal, whatever its character. Upon its rendition the appeal from the judgment of December 22, 1897, was no longer pending. “It was,” as was said by the supreme court in the Case of Shiboys Jugiro, 140 U. S. 291, 295, 11 Sup. Ct. 770, 35 L.

Ed. 510, “none the less a final disposition of the case because at a subsequent date, under the rules and practice of this court, a mandate would be sent down to the circuit court, showing the fact of the affirmance of its judgment.” But we are also of the opinion that as the law did not give any appeal from the decree of December 22, 1897, to the supreme court, as was held by that court in the cases above cited, the attempted appeal therefrom by the Blythe Company was ineffectual for any purpose.

It was a nullity, and therefore could not stop or suspend the running of the time within which that company was entitled to file a bill of review. Neither its action, nor that of the court of equity whose aid it ivas entitled to thus seek, was at all hindered or embarrassed during the pendency of an attempted appeal which was wholly unauthorized by law. It was, in effect, so decided by this court in Reed v. Stanley, supra.

The final decree there sought to be reviewed was entered by the circuit court in favor of the complainants in the suit on June 18, 1896, 22 days after which, to wit, July 10, 1896, the term of the court expired.

From that decree an appeal was taken on the 16th day of December, 1896, by the defendants to the supreme court, upon the sole ground that the circuit court had no jurisdiction of the suit, which appeal was dismissed by the. supreme court May 24, 1897, for the reason that under the provisions of the act of March 3, 1891, establishing the circuit courts of appeals (26 Stat. 826), no appeal could be taken unless the certificate as to the jurisdiction was granted by the trial judge during the term at which the decree was entered. Merritt v. Bowdoin College, 167 U. S. 745, 17 Sup. Ct. 996, 42 L. Ed. 1209.

The mandate of dismissal was received by the circuit court. June 16, 1897. On the next day a second appeal was taken to.the supreme court b}' the defendants upon the ground that the. cause involved “the construction or application of the constitution of tli'e United States,” which appeal was likewise dismissed by the supreme court (169 U. S. 551, 18 Sup. Ct. 415, 42 L. Ed. 850), and the : mandate certifying that dismissal was received by the circuit co.urt March 28, 1898.

Four days thereafter, to wit, on the 1st day of April, 1898, a bill of review was filed, seeking the review and reversal .of the decree entered in the- original suit on the 18th day of June, 1896. An amendment to the bill of review was'filed April 11, r8(j8, in the circuit court; and on June 2, 1898, another amendment to the bill of review was filed therein, in which was stated the time occupied by the two appeals to the supreme court from the decree sought to be reviewed.

In holding that the bill oí review there in question was filed too late, this court said: "The record shows that In the case of Bowdoin College v. Merritt the question of jurisdiction was in issue, was sustained by the circuit court, and a decree on the merits rendered in favor of the complainants. The defendants to the suit Thereupon had their election either to have the question of jurisdiction certified by the circuit court, and appeal directly to the supreme court, or to cairy the whole case, including the question of jurisdiction, to the circuit court of appeals.

For the larter purpose the act of congress allowed them six months from the entry of the decree, and also made it an essential condition of a direct appeal to the supreme court that a certificate of the circuit court be procured during the term at which the decree was rendered, to the effect that the question of the jurisdiction of the court to render the decree was in issue. Without the making of such certificate, the right to appeal to the supreme court did not exist at all, as was expressly decided by the supreme court in the cases cited.

When, therefore, the term at which the decree in Ihe case of Bowdoin College v. Merritt was entered expired, without the procuring of the necessary certificate, the opportunity of the defendants lo that suit to avail themselves of an appeal to the supreme court on the question of jurisdiction was gone. The right to such appeal never had come into existence, and never thereafter eonlcl do so.

The alternative, however, given them by the act of March 3, 3891, to appeal the whole case, including the question of jurisdiction, to the circuit court of appeals, continued to exist for the period of six months from the time of the entry of the decree complained of. Within the time thus allowed by statute for an appeal from the decree the defendants thereto were entitled, by analogy, to file a bill of review for the correction of any error apparent upon the face of file record of the case in which the decree was entered. Within that time the present bill of review was not filed.

Under the act of March 3, 1891, as construed by the supreme court, there never came into existence any right on the part of the appellants to appeal to the supremo court from the decree in the case of Bowdoin College v.

Merritt; that act having declared, in effect, That, unless the circuit court certified during the term at which the decree was rendered that the jurisdiction of the court to render the decree was involved, there could be no appeal to the supreme court In view of this legislation, to permit the appellants to now bring up the decree complained of for re-examination by means of a bill of review would be to permit them to accomplish indirectly what the act of congress has prohibited them from doing directly.” In that case this court took no account of the time occupied by the two appeals to the supreme court from the decree there sought to be reviewed, for the reason, as appears from the opinion, that under the law no right of appeal to the supreme court, ever existed, and therefore this court treated the attempted appeals there as wholly ineffectual for any purpose.

The same thing must be, true here, where by the law no right of appeal to the supreme court was given from the judgment sought to be reviewed. Such cases as the present and that of Reed v. Stanley, supra, are essentially different from Ensminger v. Powers, 108 U. S. 292, 2 Sup. Ct. 643, 27 L. Ed. 732; Kimberly v. Arms (C. C.) 40 Fed. 548; and others cited by the appellant.

In Ensrninger v, Powers the decree of the circuit court was entered against the. plaintiffs, in the suit on the 27th day of December, 1873, from 'which they, in The exercise of a right given them by the law, appealed to the supreme court in January, 1874. On the 13th of December, 1875, the appeal was dismissed by the- supreme court for the failure of the appellants to file and docket the cause in that court in conformity with its rules. The bill of review'considered in Ensminger v.

Powers was not brought in the circuit court until the 9th day of September, 1876,—more than two years after the decree of December 27, 1873, thereby sought to be reviewed, was rendered.

In overruling the objection there made, that the bill of review was not brought in time, the supreme court said: “But the appeal to tills court was perfected by the giving of a bond for costs in January, 1874, and although this court in December, 18(35 [1875], dismissed the appeal for the failure of the appellants to file and docket the cause in this court, yet the cause was out of the court below and in this court until within two years before the bill in this suit was filed.

The pendency of the appeal by Bridget Powers would have been a valid objection to the filing of a bill of review by her for the errors in law now alleged, and inasmuch as the appeal was not heard on its merits, but the prosecution of it was abandoned, we are of opinion that the bill of review was filed in.time. While the appeal was pending here, although there was no supersedeas, the circuit court had no jurisdiction to vacate the decree in pursuance of the prayer of a bill of review, because such an action was beyond its control.

The time during which the control was suspended to await the orderly conduct of business in this court in regard to hearing the appeal is not to be reckoned against Bridget Powers in this case, although she joined in the appeal. She was exercising a right in doing so, and as the city of Memphis was the principal plaintiff and appellant, and was endeavoring to protect its title in fee, and thus her right as a lessee, it may very well have been, as is alleged in the bill, that the appeal fell because the city refused .to pay the necessary money for filing the transcript of the record.

Being .thus left to the protection of her own rights, she may well have concluded that a bill of review was preferable to the further prosecution of the appeal, when she had such good cause for that course, as now appears, although the same error might have been corrected if the appeal had been heard on the merits.” 108 U. S. 302, 303, 2 Sup. Ct. 652, 27 L. Ed. 736.

The broad distinction between a case where the control of the circuit court over its decree by means of a bill of review is taken away by means of an appeal authorized by law, and a case such as that now before us, where the appeal attempted was wholly unauthorized by law, and therefore nothing existed to take away the control of the court over its judgment by means of a bill of review, is sufficiently manifest, without elaboration. In the case of Kimberly v.

Arms, supra, it was held that the circuit court would not entertain a bill of review to vacate a decree from which the petitioners had prayed and been allowed an appeal to the supreme court, even though they averred in their petition for leave to file the bill that they did not intend to perfect their appeal in the supreme court. The decree which was there sought to be reviewed and set aside was one entered in the circuit court pursuant to a mandate of the supreme court.

The defendants to the suit against whom the decree was thus rendered thereupon, and during the term of court at which the decree was given, prayed an appeal therefrom .to the supreme court, which was allowed upon their giving bond with sureties to be approved by the court.

Such appeal bond was duly executed and approved, after which the defendants petitioned the court for leave to file a bill of review, in which they stated, among other things, “that it is not the purpose of defendants, as at present advised, to perfect their said appeal by filing the record and docketing this cause in the supreme court, as required by the rules of practice of that court.” In respect to that averment the court, in its opitiion refusing leave to file the bill of review, said: “This averment does not, of course, amount to an abandonment of said appeal, nor to a definite purpose or intention to do so, but leaves the question of its further prosecution to the option of appellants.

No new proceedings having been had in this court between the mandate of the supreme court and the decree based thereon, said appeal by defendants was, no doubt, improvidently taken and allowed.

Still it has the effect of transferring the cause, and the decree sought to be reviewed, into the supreme court, where it will remain until heard and disposed of on the merits, or dismissed, under the provisions of the ninth rule of said court, for appellants’ failure to file the record and docket the case.” The appeal in that case was not a nullity, for it was taken from a final decree from which the statute allowed an appeal to the supreme court.

But, the decree from which the appeal was taken having been entered under and by virtue of a mandate of the supreme court issued in pursuance of the judgment of that court disposing of a former appeal in the cause, it was an appeal which the supreme court would entertain only to the extent of ascertaining whether it was in accordance with its mandate. Thus, in Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1045, it is said that: “An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court in exact accordance with our mandate upon a previous appeal.

Such a decree, when entered, is, in effect, our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the ease will be remanded, with appropriate directions for the correction of the error.” Not one of the cases cited by the appellant holds that an attempted appeal in a case in which no appeal is by law allowed operates to suspend the running of the time during which a bill of review may be filed.

Being of the opinion that the bill in the present case was filed too late, we must affirm the judgment without regard to other questions argued by counsel. The judgment is affirmed.