Siegmund v. General Commodities Corporation, 12068.
Citation | 175 F.2d 952 |
Decision Date | 28 June 1949 |
Docket Number | No. 12068.,12068. |
Parties | SIEGMUND v. GENERAL COMMODITIES CORPORATION, Limited. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
James L. DeSouza, John F. Sullivan, Phoenix, Arizona, for appellant.
Rawlins, Davis, Christy & Kleinman, Phoenix, Arizona, for appellees.
Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.
This is an appeal from a judgment dismissing a cause against the several appellees, who were some, but not all, of the defendants below. The complaint alleged that the plaintiff, appellant here, was a citizen of Arizona; that defendant, General Commodities Corporation, one of the appellees, was a corporation organized under the laws of Hawaii; that the remaining appellees were citizens of the Territory of Hawaii.
Jurisdiction of the district court was invoked on the ground of diversity of citizenship under the Act of April 20, 1940, c. 117, 54 Stat. 143, 28 U.S.C. § 41(1),1 later considered, which extended the diversity jurisdiction to include cases between citizens of the District of Columbia, the Territories of Alaska and Hawaii, and any state of territory. The court below held that this Act was unconstitutional and so dismissed the action as to appellees who were citizens of Hawaii.
Appellees have moved to dismiss the appeal on the ground that the order of dismissal was not a final order as required by § 128 of the Judicial Code, 28 U.S.C. § 225.2
We think the order of dismissal is such a final order and that this court has jurisdiction to review it in this appeal.
The complaint states two causes of action. The first is against appellee General Commodities Corporation for breach of contract. The second is against appellee General Commodities Corporation, Heen, Kai and Akana, and also against W. T. Davis and two fictitious corporations and each of them, for conspiring to deprive appellant of his rights and the payment due him under the contract sued upon in the first cause. The relief sought was a judgment against the defendants upon both a joint and a several liability.
The two fictitious corporations have not been served with process, so the fact that there is no judgment as to them will not affect appellant's right to this appeal. Bradshaw v. Miner's Bank, Cir. 7, 81 F. 902.
Appellees, although they are sued jointly and severally, and the dismissal was as to both joint and several liability, contend that the judgment dismissing the complaint as to some of the defendants is not a final order since it leaves other defendants in the court below against whom joint relief is sought. In this situation the contention is that the partial joint defendants' appeal should be dismissed and the appellant required to remain in the lower court until the question of joint liability of all is determined. In this appellees rely upon Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443, and cases following that decision. These cases hold that where a plaintiff seeks to hold multiple defendants jointly liable and the trial court dismisses the action as to some of the defendants, an appeal by the plaintiff from the judgment of dismissal will be dismissed on the ground of absence of jurisdiction in the appellate court. This because the judgment cannot be final until the case is wholly disposed of as to all defendants sought to be held jointly liable. See United States v. Girault, 11 How. 22, 32, 13 L.Ed. 587.
Without determining whether a final judgment could be entered below if only joint liability were asserted, we think that where a several liability is also asserted a final judgment may be entered as to the several liability. Here, since such a judgment of several liability is entered, we deny the motion to dismiss. See Curtis v. Connly, Cir. 1, 264 F. 650, 651 affirmed 257 U.S. 260, 42 S.Ct. 100, 66 L.Ed. 222; Thompson v. Murphy, Cir. 8, 93 F.2d 38.
Since the judgment of the court below was entered, the Supreme Court has decided the case of National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. ___, 69 S.Ct. 1173 (decided June 20, 1949), which reversed 4 Cir., 165 F.2d 531, on which appellees rely here.
The National Mutual case upheld the constitutionality of the Act involved here as applied to an action between a citizen of the District of Columbia and a citizen of a state. We think that decision is controlling where the action is between the citizens of a state and a citizen of the Territory of Hawaii.
Section 41(1) of Title 28 United States Code provides as follows:
The reasons assigned by the two groups of Justices who concurred in the result are as applicable to cases involving citizens of territories as they are to cases in which citizens of the District of Columbia are parties.
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