Butcher & Sherrerd v. Welsh

• Decision Date: 05 August 1953
• Docket Number: No. 10948.,10948.
• Citation: 206 F.2d 259
• Court: U.S. Court of Appeals — Third Circuit
• Parties: BUTCHER & SHERRERD et al. v. WELSH et al.

206 F.2d 259 (1953)

BUTCHER & SHERRERD et al. v. WELSH et al.

No. 10948.

United States Court of Appeals Third Circuit.

Argued April 20, 1953.

Decided August 5, 1953.

Rehearing Denied August 28, 1953.

W. Wilson White, Philadelphia, Pa., (Howard H. Rapp, Philadelphia, Pa., White, Williams & Scott and Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief) for petitioners.

Harry J. Alker, Jr., of Philadelphia, Pa., Edwin Hall, 2d, Philadelphia, Pa., (Francis E. Walter, Easton, Pa., on the brief) for intervenors.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

This is an original proceeding upon petition for writs of mandamus and prohibition to be directed to the Honorable George A. Welsh and the other Judges of the United States District Court for the Eastern District of Pennsylvania.

Petitioners are assignees of a judgment which was obtained in the District Court in the case of Federal Deposit Insurance Corp. v. Alker, Civil Action No. 3047, affirmed by this Court, 1945, 151 F.2d 907. The defendants in that proceeding are intervenors herein.

The history of this litigation stretches over a decade. Its pertinent highlights are as follows: In 1943, F.D.I.C. sued Harry J. Alker, Jr. ("Alker") (and other nominal defendants) to recover the balance due from Alker on a loan made to him by the Integrity Trust Company ("Integrity") on a demand collateral note. Alker's note and collateral had been pledged with F.D.I.C. together with the other banking assets of Integrity as security for a loan by F.D.I.C. to Integrity, prior to the latter's closing. F.D.I.C. in due course called in the loan, sold the collateral and sued for the resulting deficiency. Alker defended on the ground that he had an oral agreement with Integrity which provided the latter was not to disturb the loan or the collateral until security values had risen to such a point that Alker could recover his "equity" in the collateral. The case was tried in the District Court by the Honorable George A. Welsh, respondent herein, without a jury. Judgment was entered for the plaintiff against Alker in the amount of $117,581.35 on November 8, 1944; motions for a new trial were denied; and the judgment was affirmed by this Court in November, 1945, supra, upon the authority of the Supreme Court decision in D'Oench, Duhme & Co., Inc., v. Federal Deposit Insurance Corp., 1942, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956. Certiorari was denied by the Supreme Court, 327 U.S. 799, 66 S.Ct. 901, 90 L.Ed. 1025. Two petitions for rehearing were denied, 328 U.S. 877, 66 S. Ct. 976, 90 L.Ed. 1645, and 328 U.S. 879, 66 S.Ct. 1117, 90 L.Ed. 1647. Motions for leave to file petitions for rehearing were thrice denied. 328 U.S. 881, 66 S.Ct. 1361, 90 L.Ed. 1648, Id., 329 U.S. 823, 67 S.Ct. 28, 91 L.Ed. 699, and 329 U.S. 830, 67 S.Ct. 350, 91 L.Ed. 704. The mandate of affirmance was finally returned to the District Court on October 24, 1946.

Following return of the mandate affirming the judgment of the District Court, defendants filed with Judge Welsh a motion for new trial on the ground of after-discovered evidence, and, inasmuch as the judgment had been affirmed by this Court, a petition was filed here in the nature of a bill of review, seeking leave to the District Court to consider the motion. After hearing, this petition was denied, 3 Cir., 1947, 163 F.2d 123. A petition for rehearing was then filed alleging further afterdiscovered evidence, which petition was again denied, 3 Cir., 1947, 164 F.2d 469. The Supreme Court denied certiorari, 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755, and a petition for rehearing, 334 U.S. 862, 68 S.Ct. 1527, 92 L.Ed. 1782. Motions for leave to file petitions for rehearing were thrice denied; 335 U.S. 838, 69 S.Ct. 14, 93 L.Ed. 390, Id., 335 U.S. 864, 69 S.Ct. 123, 93 L.Ed. 409, Id., 335 U.S. 894, 69 S.Ct. 242, 93 L.Ed. 431. The defendants then once again petitioned this Court for rehearing, and for a stay in the handing-down of our mandate. This petition was denied, 3 Cir., 1948, 169 F.2d 336. Pursuant to denial of certiorari by the Supreme Court, 336 U.S. 953, 69 S.Ct. 880, 93 L.Ed. 1108, the mandate denying leave to the District Court to hear the motion for new trial was returned to that court on July 30, 1948.

Shortly thereafter, on August 25, 1948, defendants filed a "renewal" of motion for a new trial in the District Court.¹ This motion was first granted by the court below, and then denied; and appeal was taken by the defendants from the denial. We affirmed the District Court's denial, Secretary of Banking of Pa. v. Alker, 3 Cir., 1950, 183 F.2d 429, certiorari denied, Du Ban v. Federal Deposit Ins. Corp., 340 U.S. 917, 71 S.Ct. 351, 95 L.Ed. 663, rehearing denied, 340 U.S. 939, 71 S.Ct. 489, 95 L.Ed. 678. Thus, a third mandate of this Court affirming the judgment against the defendants was returned to the District Court on September 7, 1950.

Some nineteen months later, on April 24, 1952, defendants, without further application to this Court, filed another motion for a new trial with Judge Welsh. On December 2, 1952, Judge Welsh entered an Order granting a new trial. In an opinion accompanying his Order he stated that he did so in order to afford the defendants the opportunity of "presenting evidence hitherto unavailable of certain phases of the case which might alter the whole picture as now presented."

Petitioners immediately made application here for writs of mandamus and prohibition, alleging that Judge Welsh acted beyond his jurisdiction and in direct disobedience of the prior mandates of this Court. The petition prays that the Order of December 2, 1952, be vacated, and that the several Judges of the District Court be prohibited from proceeding with a new trial of the cause. In his answer Judge Welsh states that he granted a new trial in the belief that jurisdiction to do so was conferred upon him by virtue of Rule 60 (b), as amended, of the Federal Rules of Civil Procedure, 28 U.S.C.²

We are of the opinion that this case is a proper one for the issuance of the writs prayed for.

It is true that ordinarily mandamus may not be resorted to as a mode of review where a statutory method of appeal has been prescribed; Pennsylvania R. Co. v. Kirkpatrick, 3 Cir., 1953, 203 F.2d 149. In Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 63 S.Ct. 938, 941, 87 L.Ed. 1185, it was held: "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." (Emphasis supplied.) See also Ex parte Republic of Peru, 1943, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Ex parte Kawato, 1942, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58; McCullough v. Cosgrave, 1940, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992; Interstate Commerce Commission v. United States ex rel. Campbell, 1933, 289 U.S. 385, 53 S.Ct. 607, 77 L.Ed. 1273; Ex parte United States, 1932, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283; State of Colorado v. Symes, 1932, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253; State of Maryland v. Soper, No. 1, 1926, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; State of Maryland v. Soper, No. 2, 1926, 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459; State of Maryland v. Soper, No. 3, 1926, 270 U.S. 44, 46 S.Ct. 194, 70 L.Ed. 462.

Inasmuch as the action of the District Court in granting a new trial was clearly beyond its jurisdiction the above stated principle is applicable here. Where a judgment has been affirmed on appeal and the mandate handed down it is beyond the power of the lower court to disturb the judgment without leave of the appellate court. This procedure is required by longsettled principles. Simmons Co. v. Grier Bros. Co., 1922, 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475; National Brake & Electric Co. v. Christensen, 1921, 254 U.S. 425, 41...