Chicago Great Western Ry. Co. v. Beecher

• Decision Date: 23 July 1945
• Docket Number: No. 13010.,13010.
• Parties: CHICAGO GREAT WESTERN RY. CO. v. BEECHER.
• Court: U.S. Court of Appeals — Eighth Circuit

150 F.2d 394 (1945)

CHICAGO GREAT WESTERN RY. CO. v. BEECHER.

No. 13010.

Circuit Court of Appeals, Eighth Circuit.

July 23, 1945.

COPYRIGHT MATERIAL OMITTED

Harry S. Stearns, of Saint Paul, Minn. (Harry S. Stearns, Jr. and Michael N. Lyons, Jr., both of Saint Paul, Minn., and Donald Evans, of Des Moines, Iowa, on the brief), for appellant.

William H. DeParcq, of Minneapolis, Minn. (Robt. J. McDonald and Donald T. Barbeau, both of Minneapolis, Minn., on the brief), for appellee.

Before SANBORN, WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

On November 19, 1942, plaintiff (appellee), a child under three years of age, by his father and natural guardian commenced a common law action against the defendant in the state court of Minnesota to recover damages for personal injuries sustained at Dubuque, Iowa, as a result of the alleged negligence of defendant's employees while operating a freight train through that city on August 19, 1942. About the same time a similar action involving the same parties and the same cause of action was commenced in the state court of Illinois at Chicago. On December 9, 1942, the Minnesota case was removed by the defendant to the district court on the ground of diversity of citizenship. In December, 1942, after removal, the defendant appeared and filed answer.

On February 27, 1943, the district court of Iowa, sitting in Dubuque county, upon petition of defendant, issued a writ of injunction ex parte prohibiting plaintiff from maintaining the actions in Minnesota and Illinois, and further prohibiting plaintiff from prosecuting any other suit growing out of the same accident in any jurisdiction except Iowa.

On September 7, 1943, upon motion of plaintiff and after hearing thereon, the district court entered an order directing the plaintiff forthwith to dismiss without prejudice the action pending in Illinois, and directing the defendant within 10 days to dismiss the injunction proceedings and the writ of injunction granted by the court in Iowa. The order provided further that in the event the defendant failed to dismiss the injunction within 10 days the court, upon application of the plaintiff, would strike the answer and permit the plaintiff to proceed as by default.

The parties stipulated (1) that immediately upon the filing of the foregoing order the plaintiff dismissed his action pending at Chicago, Illinois; (2) that within 10 days defendant dismissed its injunction or restraining order at Dubuque, Iowa; and (3) that on October 14, 1943, by agreement of the parties the depositions of witnesses were taken at Dubuque, Iowa.

On November 10, 1943, the court denied defendant leave to file a petition seeking vacation of the order of September 7, 1943. On November 15, 1943, the defendant filed an amended answer and the case proceeded to trial before a jury. The trial resulted in a verdict for the plaintiff for damages. Judgment was entered thereon, and the defendant appeals.

The defendant seeks reversal of the judgment on the grounds that the court erred (1) in entering the order of September 7, 1943, supra; (2) in denying defendant's request at the opening of the trial to exclude the plaintiff from the court room during the trial; (3) in overruling defendant's objections to the admission of testimony; and (4) in the charge to the jury.

Since the sufficiency of the evidence to support the verdict and the judgment is not challenged only such facts as are necessary to an understanding of the legal contentions will be stated in connection with the discussion.

1. The Order of September 7, 1943. — The defendant contends that the order compelling it to dismiss its Iowa injunction within 10 days under penalty of having its answer stricken and the court's refusal to vacate the order and to dismiss the complaint is reversible error.

There is no claim that the case was not at issue or that the district court did not have jurisdiction of the subject matter of the cause of action and of the parties on January 27, 1943, when the injunction was issued restraining the plaintiff from prosecuting the case in the federal court in Minnesota. Neither is it denied that the issuance of the injunction was a valid exercise of the Iowa court's equity powers.

The defendant argues that the order directing it to dismiss the Iowa injunction was void, being in violation of the prohibition of § 265 of the Judicial Code, 28 U.S. C.A. § 379. To support this position defendant relies upon such cases as Southern R. Co. v. Painter, 314 U.S. 155, 62 S. Ct. 154, 86 L.Ed. 116, and Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967. The plaintiff contends that § 265 is not applicable because the order was issued by the federal court to protect its own jurisdiction, citing Chicago, M. & St. P. Ry. Co. v. Schendel, 8 Cir., 292 F. 326, and similar cases. In the view we have taken of the case it is unnecessary to consider these contentions.

Since the defendant did comply with the September 7th order by dismissing the Iowa injunction, and since the case was thereafter tried on its merits in the district court, this court should consider its own jurisdiction and the propriety of reversing or affirming the order.

It is an established rule in the federal courts that compliance with a judgment or decree of a court by payment of the judgment or performance of the decree does not bar an appeal from such judgment or decree where repayment or restitution may be enforced. Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 28 L.Ed. 981; Hoogendorn v. Daniel, 9 Cir., 202 F. 431; Josevig-Kennecott Copper Co. v. James F. Howarth Co., 9 Cir., 261 F. 567; Luedinghaus Lumber Co. v. Luedinghaus, 9 Cir., 299 F. 111; Cramer v. Phœnix Mutual Life Ins. Co., 8 Cir., 91 F.2d 141. And upon reversal of the judgment by an appellate court the trial court should compel restitution as far as possible where it is within its power to do so. Northwestern Fuel Co. v. Brock, 139 U.S. 216, 219, 11 S.Ct. 523, 35 L.Ed. 151; Arkadelphia Milling Co. v. St. Louis S. W. R. Co., 249 U. S. 134, 145, 39 S.Ct. 237, 63 L.Ed. 517; Ex parte Lincoln Gas & Electric Co., 256 U.S. 512, 516, 41 S.Ct. 558, 65 L.Ed. 1066; Baltimore & Ohio R. Co. v. United States, 279 U.S. 781, 786, 49 S.Ct. 492, 73 L.Ed. 954. But the acceptance of the benefits of a judgment constitutes an abandonment of the right to appeal. Colquette v. Crossett Lumber Co., 8 Cir., 149 F.2d 116, 118.

Another well established rule is that courts will decide only actual controversies, and that an appellate court, when an event has occurred which renders it impossible to grant any effectual relief to the appellant, will not proceed to judgment but will dismiss the appeal. Or, "if the intervening event is owing either to the plaintiff's appellant's own act, or to a power beyond the control of either party, the court will stay its hand." Mills v. Green, 159 U.S. 651, 653, 654, 16 S.Ct. 132, 133, 40 L.Ed. 293; Dakota County v. Glidden, supra. And when the controversy resulting in the order appealed from is extinguished by compliance the case is moot and the court will not proceed. American Book Co. v. Kansas, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613. In such a case an appellate court is powerless to grant relief. People of State of California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747. When an injunctive order has expired it is moot. Southard & Co. v. Salinger, 7 Cir., 117 F.2d 194; Walling v. Shenandoah-Dives Mining Co., 10 Cir., 134 F.2d 395; Benitez v. Anciani, 1 Cir., 127 F.2d 121, 125. When the affirmance or reversal of an order made in the course of the proceeding would make no difference in respect of the controversy on the merits, the appellate court will not determine whether it was decided erroneously or not. Little v. Bowers, 134 U.S. 547, 556, 10 S.Ct. 620, 33 L.Ed. 1016. Compare Singer Mfg. Co. v. Wright, 141 U.S. 696, 700, 12 S.Ct. 103, 35 L.Ed. 906; New Orleans Flour Inspectors v. Glover, 160 U.S. 170, 16 S.Ct. 321, 40 L.Ed. 382; Codlin v. Kohlhausen, 181 U.S. 151, 21 S.Ct. 584, 45 L.Ed. 793; Jones v. Montague, 194 U.S. 147, 151, 152, 24 S.Ct. 611, 48 L.Ed. 913; In re Lincoln, 202 U.S. 178, 26 S.Ct. 602, 50 L.Ed. 984; Fisher v. Baker, 203 U.S. 174, 27 S.Ct. 135, 51 L.Ed. 142, 7 Ann.Cas. 1018; United States v. Hamburg Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 475, 36 S.Ct. 212, 60 L.Ed. 387; Missouri Public Service Co. v. City of Trenton, Mo., 8 Cir., 80 F.2d 520.

The foregoing rules render it impossible for this court to grant the defendant any form of relief from the order complained of. Defendant had a right to appeal to this court from the order when it was entered, § 129, Judicial Code, 28 U.S. C.A. § 227, and to ask for a stay order pending the appeal. Instead of pursuing this course it elected to comply with the order and dismissed the injunction proceeding in the Iowa court. No obstacle to the trial or restraint upon the plaintiff then remained. Thereafter defendant took depositions, filed an amended answer, and participated in the trial. The district court having jurisdiction of the subject matter and of the parties tried the case, as it was required to do. McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762. These events having occurred restitution is impossible. Neither this court nor the district court can reinstate the injunction proceeding in the Iowa court; and, if, upon application of the defendant, the Iowa court should do so its order can not be made retroactive so as to affect the trial already had and the judgment already entered in the district court.

In this connection it should be observed that the subject matter of the action in the district court was damages for the injury to the plaintiff. That was not the subject matter of the proceeding in the Iowa court. The orders relating to the injunction in no way impaired the jurisdiction of the ...