Howard v. Wilbur

• Citation: 166 F.2d 884
• Decision Date: 15 March 1948
• Docket Number: No. 10509.,10509.
• Parties: HOWARD v. WILBUR et al.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

166 F.2d 884 (1948)

HOWARD v. WILBUR et al.

No. 10509.

Circuit Court of Appeals, Sixth Circuit.

March 15, 1948.

Sawyer A. Smith, of Covington, Ky., for appellant.

No appearance for appellees.

Before HICKS, SIMONS and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellant, Ulie J. Howard, an attorney of Kenton County, Kentucky, appealed from an order entered by the U. S. District Court for the Eastern District of Kentucky striking his name from the roll of attorneys of that Court. At the time of the order he was the Commonwealth's Attorney for the 16th Judicial District in Kentucky with headquarters at Covington, Kenton County, Kentucky. The issues involved in the controversy are given in the District Court's opinion, reported as Wilbur v. Howard, D. C., 70 F.Supp. 930. The District Court's order was entered April 8, 1947, following which a notice of appeal was duly filed. The record on appeal was filed and the appeal completed on July 9, 1947. On October 17, 1947, Howard died. On December 16, 1947, the appellees filed a motion in this court which recited his death and moved for an order dismissing the appeal upon the ground that it had become moot. Counsel for the appellant has filed a response in which objection is made to the motion and it is prayed that the motion be dismissed or that the court withhold decision on the motion until final hearing. At the same time Aileen Howard, Executrix of the Estate of Ulie J. Howard, deceased, filed a petition in this court setting out her appointment as such executrix by order of the Kenton Circuit Court of October 28, 1947, her subsequent qualification as such executrix, adopting the response filed on behalf of the appellant, and asking that she be made a party to this action and that it be revived and proceed in her name. Appellees have filed a reply which states that the response fails to state sufficient reasons why the motion to dismiss the appeal should not be sustained.

The order of the District Court is an appealable order. Section 225, Title 28 U.S.C.A.; Thatcher v. United States, 6 Cir., 212 F. 801; In re Fletcher, 71 App.D. C. 108, 107 F.2d 666, certiorari denied, 309 U.S. 664, 60 S.Ct. 593, 84 L.Ed 1011, rehearing denied, 309 U.S. 698, 60 S.Ct. 713, 84 L.Ed. 1037; In re Schachne, 2 Cir., 87 F.2d 887.

It will be noticed that the motion to dismiss the appeal is not based upon the ground that the action abated upon the death of the appellant. But since appellant's death has now been suggested of record to us, its effect on the appeal should probably be considered. Although the rule in criminal cases is that the death of a defendant pending appeal abates the appeal; List v. Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222; State v. Kriechbaum, 219 Iowa 457, 258 N.W. 110, 96 A.L.R. 1317 and annotation at page 1322; the general rule with respect to civil actions is that the death of a party subsequent to the entry of a judgment in favor of the plaintiff in the lower court and pending a review proceeding does not abate the appeal. Green v. Watkins, 6 Wheat. 260, 5 L.Ed. 256; Coughlan v. Dist. of Col., 106 U.S. 7, 1 S. Ct. 37, 27 L.Ed. 74; Roberts v. Criss, 2 Cir., 266 F. 296, 11 A.L.R. 698. In such cases the cause of action has been merged into the judgment, even though it would not have survived if death had occurred prior to judgment. The rule does not apply in cases where the judgment in the lower court has gone in favor of the defendant, as the alleged cause of action has never ripened into a judgment. Martin v. Baltimore & Ohio Railroad, 151 U.S. 673, 703, 14 S.Ct. 533, 38 L.Ed. 311.

Regardless of the question of abatement, it is settled that if the question presented by an appeal has become moot the appeal will be dismissed by the appellate court without a ruling on the merits. Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 133, 40 L.Ed. 293; Heitmuller v. Stokes, 256 U.S. 359, 41 S.Ct. 522, 65 L.Ed. 990; Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620. In Mills v. Green, supra, the court pointed out that it was the duty of every judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or to declare rules of law which can not affect the matter in issue in the case before it. It said, "It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence." The present case falls clearly within that general rule. The death of the appellant renders it unnecessary for this court to determine whether or not the appellant is entitled to practice law in the U. S. District Court for the Eastern District of Kentucky, and also renders it impossible for this court to grant any effectual relief to the appellant even if we should disagree with the ruling of the District Judge. Metzger v. O'Donoghue, 53 App.D.C. 107, 288 F. 461; Leber v. United States, 9 Cir., 170 F. 881, 892, 893.

Appellant's counsel, while recognizing the general rule, claims that the present case is controlled by well recognized exceptions to the rule.

One such exception is that regardless of the moot character of an appeal it will not be dismissed where the question involved is a matter of public interest. The application of this exception is shown by such cases as Southern Pacific Co. v. Interstate Commerce Commission, 219 U.S. 433, 31 S.Ct. 288, 55 L.Ed. 283, and United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007. The question is also well discussed in Willis v. Buchman, 240 Ala. 386, 199 S. 892, 132 A. L.R. 1179, with annotation beginning at page 1186. The question involved in the present appeal is not such a matter of public interest, as defined by those cases, as would bring it within the exception.

Another recognized exception to the general rule is that an appeal will not be dismissed where only a part of the controversy has become moot and other questions remain for decision. This exception was recognized and applied in the four cases cited and relied upon by appellant's counsel, namely, Lincoln Printing Company v. Middle West Utilities Co., 7 Cir., 74 F.2d 779; Burton v. Carey, 9 Cir., 82 F.2d 657; Cramer v. Phoenix Mutual Life Ins. Co., 8 Cir., 91 F.2d 141; Jackson v. Denver Producing & Refining Co., 10 Cir., 96 F.2d 457. But in each of those cases only part of the issue presented in the trial court had become moot and there was left in the appeal other questions which had not become moot and which affected the correctness of the judgment. There is only one issue in the present case; it has been removed from the controversy by appellant's death. No other issue remains for this court to decide. Nor does the case fall within the ruling of such cases as Morrison v. Hess, Mo.Sup., 231 S.W. 997, 18 A.L.R. 433, and Arkansas-Missouri Power Co. v. Brown, 176 Ark. 774, 4 S.W.2d 15, 58 A.L.R. 534. In those cases, although the main issue...