Minnesota & Ontario Paper Co. v. Molyneaux

• Decision Date: 17 March 1934
• Docket Number: No. 381.,381.
• Citation: 70 F.2d 545
• Parties: MINNESOTA & ONTARIO PAPER CO. et al. v. MOLYNEAUX, District Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 545 (1934)

MINNESOTA & ONTARIO PAPER CO. et al. v. MOLYNEAUX, District Judge.

No. 381.

Circuit Court of Appeals, Eighth Circuit.

March 17, 1934.

Mortimer H. Boutelle, of Minneapolis, Minn. (A. H. David, John H. Hougen, John C. Holten, Tom Davis, and Ernest A. Michel, all of Minneapolis, Minn., on the brief), for petitioners.

Henry C. Carlson and John B. Faegre, both of Minneapolis, Minn. (Cobb, Hoke, Benson, Krause & Faegre and Fowler, Carlson, Furber & Johnson, all of Minneapolis, Minn., on the brief), for respondent.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

STONE, Circuit Judge.

This is an application for a writ of mandamus or (alternatively) of prohibition against Judge Molyneaux, of the District of Minnesota. The basis of the application is that a disqualifying affidavit was filed by petitioners against the Judge in Wirt Wilson & Company v. Minnesota and Ontario Paper Company, pending before him, and that the judge erroneously held such insufficient and is proceeding to exercise jurisdiction therein.

In limine, we are met by a challenge from respondent of the jurisdiction of this court to entertain the application. The jurisdiction of federal courts as to such writs is statutory, Henderson Tire & Rubber Co. v. Reeves, Judge, 14 F.(2d) 903, this court, certiorari denied 273 U. S. 744, 47 S. Ct. 336, 71 L. Ed. 870; Muir v. Chatfield, 255 F. 24 (C. C. A. 2) and as to Courts of Appeals, Whitney v. Dick, 202 U. S. 132, 135, 136, 26 S. Ct. 584, 50 L. Ed. 963, is contained in section 377 USCA title 28, the pertinent part of which is as follows: "The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." This statute seems to be a legislative declaration of the judicially declared rule that the use of original writs might be included in appellate jurisdiction. Marbury v. Madison, 1 Cranch, 137, 175, 2 L. Ed. 60; Ex parte Yerger, 8 Wall. 85, 98, 19 L. Ed. 332, and many other cases, and see Ex parte United States, 287 U. S. 241, 245, 53 S. Ct. 129, 77 L. Ed. 283.

One of the limitations of this section is to such writs of this character as "may be necessary for the exercise of their respective jurisdictions." The jurisdiction of the Court of Appeals is purely appellate. USCA title 28, § 225; U. S. v. Mayer, 235 U. S. 55, 65, 35 S. Ct. 16, 59 L. Ed. 129; Whitney v. Dick, 202 U. S. 132, 137, 138, 26 S. Ct. 584, 50 L. Ed. 963. Therefore Courts of Appeals can entertain such writs only where they are "necessary for the exercise of" appellate jurisdiction. Whether such appellate jurisdiction exists is determined, not alone by the pendency of an appeal, but by whether the proceeding in the lower court to be affected by the writ is "within the appellate jurisdiction of the higher court." Ex parte United States, 287 U. S. 241, 246, 53 S. Ct. 129, 130, 77 L. Ed. 283; McClellan v. Carland, 217 U. S. 268, 280, 30 S. Ct. 501, 54 L. Ed. 762. Obviously, the proceeding here in the lower court is within the appellate jurisdiction of this court because it is an ordinary receivership action. Where such appellate jurisdiction exists, the necessary original writs may be entertained for any purpose necessary to protect the full exercise of that jurisdiction. One situation classed within such protection of appellate jurisdiction is where the right of appeal exists but because of the presence of "`circumstances imperatively demanding' a departure from the ordinary remedy by * * * appeal" (Whitney v. Dick, 202 U. S. 132, 140, 26 S. Ct. 584, 588, 50 L. Ed. 963) is necessary. In such situation, the writs may be employed "as an auxiliary process, and * * * as a means of correcting excesses of jurisdiction, of giving full force and effect to existing appellate authority, and of furthering justice in other kindred ways." United States v. Beatty, 232 U. S. 463, 467, 34 S. Ct. 392, 394, 58 L. Ed. 686. This rule has been recognized in this, Greyerbiehl v. Hughes Elec. Co. (C. C. A.) 294 F. 802, 805, and Turner v. United States (C. C. A.) 14 F.(2d) 360, 361, and other courts, Pickwick-Greyhound Lines v. Shattuck, 61 F.(2d) 485, 487 (C. C. A. 10); Blake v. District Court, 59 F.(2d) 78, 79 (C. C. A. 9).

It has been repeatedly declared by the Supreme Court that various original writs "cannot" be used as a substitute for appeal or writ of error. While this language ("cannot") was suited to the cases wherein used, it is evidently too broad for universal application because other decisions expressly recognize that there are situations where the appropriate writ may be employed even though the remedy of writ of error or appeal exists. Ex parte United States, 287 U. S. 241, 248, 53 S. Ct. 129, 77 L. Ed. 283; In re Lincoln, 202 U. S. 178, 182, 183, 26 S. Ct. 602, 50 L. Ed. 984; Riggins v. United States, 199 U. S. 547, 548, 551, 26 S. Ct. 147, 50 L. Ed. 303. In Riggins v. United States, supra, page 548 of 199 U. S., 26 S. Ct. 147, 148, the court said: "It is settled that the writ of habeas corpus will not issue unless the court under whose warrant petitioner is held is without jurisdiction, and that it cannot be used merely to correct errors. Ordinarily the writ will not be granted when there is a remedy by writ of error or appeal, yet, in rare and exceptional cases, it may be issued, although such remedy exists." From this situation it is clear that the appellate court has jurisdiction in every application for a writ — even where there is a remedy by writ of error or appeal — to determine whether the case is "rare and exceptional" or (as said in the same case, page 551 of 199 U. S., 26 S. Ct. 147, 149) the record discloses "any special circumstances" which justify "a departure from the regular course of judicial procedure." If such "special circumstances" are found to exist, the court may issue the writ. If such are found not to exist, the court will refuse the writ for that reason. We construe this condition of the law as follows: The jurisdiction...