Brush Electric Co. et al. v. Electric Imp. Co. of San Jose, 51 F. 557

Knowles, District Judge. In this court the California Electric Light Company moves this court to dismiss this appeal, on the ground that the order overruling this motion was not subject to appeal, the same not being a final decision. The matter presented for consideration in this motion in the court below was not one presented in the bill of complaint. It was not a matter sought in any manner to be determined by that bill.

The order overruling this motion should not be termed an “interlocutory decree.” An “interlocutory decree” is generally applied to decrees in which some matter, either oL law or of fact, is directed preparatory to a final decision. 2 Daniells, Ch. PI. & Pr. (Perk. Ed.) 1192, note a. The order was not a preliminary decree, concerning matters preparatory to a final decree upon the issues made in the bill. Neither was it a decree determining finally any of the issues presented in the bill. It was, however, a determination of a matter collateral to the issues presented in the bill.

A decree or judgment or decision wdiich finally determines all of the issues presented by the pleadings, and finally fixes the rights of the parties, is undoubtedly a final decree or judgment. The question of difficulty in this case is as to whether this order settling, as far as the circuit court was concerned, the issue presented upon this motion, can be classed as a final decision.

The act of March 8, 1891, entitled “Am act to- establish circuit courts of appeals,” etc., upon the subject of appeals to this' court, provides “that the circuit court of appeals established by this act shall exercise appellate jurisdiction to review, by appeal or by writ of error, final decisions in the district court, and .the existing circuit courts, in all cases other than those provided for in the preceding

section of this act,” etc. It is conceded that the term “final decision” in this act means the same thing as final decree or judgment. It must be apparent that that term embraces the others. Under that statute, final judgments and decrees are brought to this court for review. . The terms “final decree” and “final judgment” have been considered by the supreme 'court in statutes providing for appeals and writs of error from lower courts to it. In the case of Williams v. Morgan, 111 U. S. 689, 4 Sup. Ct.

Rep. 638, that court says of an order which waá'made upon a collateral matter not presented by any of the pleadings in the case; “It was in its nature final, and was made in a matter distinct from-tfie general subject of litigation,^—a matter by itself w'hich affected only Hie parties to the particular controversy.” And this order it was held was such a final decree as could be appealed from. In this the supreme court followed its former decision in the case of Forgay v. Conrad, 6 How. 203.

In that case the court said: “This court has not, therefore, understood the words Mina] decree’ in this strict technical sense, but has given to them a moro liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the legislature.” In this case the court held a decree was final which determined certain issues, and which did not finally determine the case.

The conclusion that the decree, to be a final one, within the meaning of the act of congress, providing for appeals to the supreme court, need not necessarily be one that disposed of all the issues presented in the case finally, but may include a final determination in collateral matters, was reached in Bronson, v Bailroad Co., 2 Black, 530, and in Central Trust Co. v. Grant Locomotive Works, 135 U. S. 209, 10 Sup. Ct. Rep. 736. In the state courts a decree for alimony pendente lite has been classed as a final decree, although the issues in the pleadings are not involved in awarding the same. Sharon v.

Sharon, 67 Cal. 195, 7 Pac. Rep. 456, 635, and 8 Pac. Rep. 709. The meaning given to the terms “final decree” or “'judgment,” in the statute providing for appeals to the supreme court, should be the same in the statute under consideration providing for appeals to this court.

Considering the construction given by the supreme court to the terms “final decisions,” “judgments,” or “decrees,” we reach the conclusion that the term “final decision” in said statute under consideration does not mean necessarily such decisions or decrees only which finally determine all the issues presented by the pleadings: that, while these are undoubtedly final decisions, the terms are not limited to them, but also apply to a final determination of a collateral matter distinct from the general subject of litigaüon, affecting only the parties to the particular controversy, and finally settles that controversy.

It would seem, also, that the importance of this collateral matter should be considered. Terry v. Sharon, 131 U. S. 46, 9 Sup. Ct. Rep. 705. The order overruling the motion of the Brush Electric Company to dismiss the cause as to it, does seem to have been the final determination of a most important question, collateral in its character. In considering the motion, questions of fact and of law were involved. Distinct issues of both were presented. They were such as were not presented by the general issues in the case. These questions would not be again presented.

They wore not preliminary to the decree upon the merits, or involved in the decree upon the merits. The order determining the issues upon this motion we therefore hold was a “final decision,” within the meaning of the statute concerning appeals in this court above referred to, and was therefore the subject of an appeal thereunder. The motion to dismiss the appeal is overruled.