Siegmund v. General Commodities Corporation, 12068.

Citation175 F.2d 952
Decision Date28 June 1949
Docket NumberNo. 12068.,12068.
PartiesSIEGMUND v. GENERAL COMMODITIES CORPORATION, Limited.
CourtUnited 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.

DENMAN, Chief Judge.

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

A. Motion to dismiss the appeal.

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.

B. The Constitutionality of the Act.

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:

"41. (Judicial Code, Section 24) Original jurisdiction. The district courts shall have original jurisdiction as follows:

"(1) United States as plaintiff; civil suits at common law or in equity.

"First. Of all suits of a civil nature * * * where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000 and * * *

"(b) Is between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska, and any State or Territory. * * *" (Italicized part added by amendment of April 20, 1940.)

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.

The opinion of Mr. Justice Jackson, concurred in by Mr. Justice Black and Mr. Justice Burton, states 69 S.Ct. 1182:

"We conclude that where Congress in the exercise of its powers under Art. I finds it necessary to provide those on whom its power is exerted with access to some kind of court or tribunal for determination of controversies, that are within the traditional concept of the justiciable, it may open the regular federal courts to them regardless of lack of diversity of citizenship. The basis of the holdings we have discussed is that when Congress deems that for such purposes it owes a forum to claimants and trustees, it may execute its power in this manner. The Congress, with equal justification, apparently considers that it also owes such a forum to the residents of the District of Columbia in execution of its power and duty under the same Article. We do not see how the one could be sustained and the other denied.

"We therefore hold that Congress may exert its power to govern the District of Columbia by imposing the judicial function of adjudicating justiciable controversies on the regular federal courts which under the Constitution it has the power to ordain and establish and which it may invest with jurisdiction and from which it may withhold jurisdiction `in the exact degrees and character which to Congress may seem proper for the public good.' Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339."

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21 cases
  • Mailloux v. Mailloux
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 31 Mayo 1977
    ...S.Ct. 202, 83 L.Ed. 189 (1938); United States v. Gratiot, 14 Pet. 526, 39 U.S. 526, 637, 10 L.Ed. 573 (1840); Siegmund v. General Commodities Corp., 175 F.2d 952 (9th Cir. 1949); NLRB v. Gonzalez Padin Co., 161 F.2d 353, 355 (1st Cir. 1947).5 Kinsella v. Krueger, 351 U.S. 470, 475, 76 S.Ct.......
  • Republic of China v. American Express Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
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    ...100, 66 L.Ed. 222; Rector v. U. S., 8 Cir., 20 F.2d 845, 860-861; Thompson v. Murphy, 8 Cir., 93 F.2d 38, 40; Siegmund v. General Commodities Corp., 9 Cir., 175 F.2d 952, 953; Crutcher v. Joyce, 10 Cir., 134 F.2d 809, 813; Kasishke v. Baker, 10 Cir., 144 F.2d 384; cf. Reeves v. Beardall, 31......
  • Leonhard v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 28 Agosto 1980
    ...a party for purposes of Rule 54(b). See United States v. Studivant, 529 F.2d 673, 674 n. 2 (3d Cir. 1976); Siegmund v. General Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949). This reading of Rule 54(b) is consistent with the practice which prevailed prior to the adoption of the Rule i......
  • Lummus Company v. Commonwealth Oil Refining Co.
    • United States
    • U.S. District Court — Southern District of New York
    • 2 Junio 1961
    ...445, 2 L.Ed. 332. The Act was later re-enacted in substance as part of the Judicial Code, 28 U.S.C. § 1332. 10 Siegmund v. General Commodities Corp., 9 Cir., 1949, 175 F.2d 952. 11 Detres v. Lions Bldg. Corp., 7 Cir., 1956, 234 F.2d 12 See Regla Coal Co. v. Bowers, D.C.S.D. N.Y.1929, 37 F.2......
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1 books & journal articles
  • WHAT IS A 'STATE'? THE INCONSISTENT CONSTITUTIONAL TREATMENT OF UNITED STATES TERRITORIES.
    • United States
    • Albany Law Review Vol. 85 No. 4, December 2022
    • 22 Diciembre 2022
    ...States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)). (56) See Siegmund v. Gen. Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949). (57) See id. at 953-54. (58) David Post & Steven C. Salop, Rowing Against the Tidewater: A Theory of Voting by Mult......

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