Commercial Union of America v. Anglo-South American Bank

Decision Date07 December 1925
Docket NumberNo. 39.,39.
Citation10 F.2d 937
CourtU.S. Court of Appeals — Second Circuit

Zabriskie, Sage, Kerr & Gray, of New York City (George Zabriskie and George Gray Zabriskie, both of New York City, of counsel), for plaintiff in error.

Appleton, Butler & Rice, of New York City (Edwin T. Rice, of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

The plaintiff is a corporation organized and existing under the laws of the state of New York. The defendant was and is a corporation organized and existing under the laws of the United Kingdom of Great Britain. It is a foreign bank transacting business within the state of New York under a license from the state superintendent of banks.

The action was brought to recover damages in the sum of $21,042.97, with interest and costs, for the alleged breach by defendant of a contract expressed in a commercial credit issued by the defendant on October 22, 1920, for the sum of $44,800. This credit was available to the plaintiff upon the presentation of documents specified, covering a shipment of 200 tons of Java sugar c. i. f. Barcelona, by steamer sailing from New York to Spain in the first half of November, 1920.

It appears that, prior to the order dismissing the complaint on the ground of its insufficiency, which order, as stated, was made on November 24, 1924, a similar motion to dismiss for a like reason had been made before Judge Mack, sitting in the District Court, and he denied the motion by an order made on February 14, 1922. It was thereby decided that the complaint was sufficient; the motion to dismiss being equivalent to a demurrer.

The first order is in the record, which the attorneys on both sides stipulate is a true transcript of the record in the action; and the facts are fully recited in the agreed "statement" prepared in accordance with rule 26 of the District Court Rules. The situation presented, therefore, is this: That after one judge sitting in the case had decided the complaint to be sufficient, another judge sitting in the same court decided it was insufficient and dismissed it.

We are not aware that it has ever before happened that in the Southern district of New York, or in any district within this circuit, one judge has in effect undertaken to set aside or ignore an order made by another judge of co-ordinate jurisdiction in the same suit. It is contended by the plaintiff that the order first made, sustaining the sufficiency of the complaint, rendered the question res judicata as between the parties, and was the law of the case, binding upon the other judges of the court.

In Roberts & Co. v. Buckley, 145 N. Y. 215, 229, 39 N. E. 966, 970, Judge O'Brien, writing for the New York Court of Appeals, said:

"But it is said that this court in the Second division took a different view of the effect of the inventory in deciding the former appeal, and that we are bound by that decision. If the facts then and now are identical, it is our duty to follow the former decision, even though convinced, if the case was res nova, that our brethern of the Second division took an erroneous view of the law. It is necessary to adhere to this principle if there is ever to be an end to litigation. It is important, of course, that private controversies should be determined in the court of last resort according to law and justice; but the infirmities of human judgment are such that different tribunals will not always take the same view of the question. When, however, the question has been once decided in this court, or in the Second division, with co-ordinate powers, the same parties, in the same case, upon the same facts, cannot be permitted to reopen the discussion without great detriment to the public interest and destroying that respect for the decisions of courts which it is important should be maintained. (Cluff v. Day, 141 N. Y. 580 36 N. E. 182; Mygatt v. Coe, 142 N. Y. 78 36 N. E. 870; Moore v. Simmons, 133 N. Y. 695 31 N. E. 513)."

And in Matter of Laudy, 161 N. Y. 429, 434, 435, 55 N. E. 914, 915, Judge Vann, writing for the same court, said:

"The principle established in all jurisdictions is that so long as the facts remain the same, the rule of law once held by the court of last resort remains the rule throughout the subsequent history of the cause, in all its stages, except under extraordinary circumstances, which do not exist in this case. 2 Van Fleet's Former Adjudication, 1302, and cases cited. Where the law of a case was determined after full argument and consideration, by the Second division of this court, and upon a second appeal substantially the same facts appeared, we refused to consider the questions of law and held the parties concluded by the former decision. Cluff v. Day, 141 N. Y. 580 36 N. E. 182. That there is a question of fact in this case is res judicata. The rule of res judicata controls the parties, while that of stare decisis guides the courts."

In Appleton v. Smith, 1 Fed. Cas. 1075, Fed. Cas. No. 498, Justice Miller (of the Supreme Court) sitting as a Circuit Justice in the district of Arkansas, in 1870, had before him a motion to quash an attachment levied on goods. He denied the motion, and in doing so said:

"Upon looking into the record of the case, I find that the same motion, based upon the same legal proposition, was made at the last term of the court, and was overruled by the last district judge, who at that time held the court. I have repeatedly decided in this circuit, since I was first assigned to it, that I would not sit in review of the judgments and orders of the court, made by the District Judges in my absence. Where, as in the present case, the motion is made on the same grounds, and with no new state of pleadings or facts, it is nothing more than an appeal from one judge of the same court to another, and though it is my province in the Supreme Court to hear and determine such appeals, I have in this court no such prerogative. The district judge would have the same right to review my judgments and orders here as I would have in regard to his. It would be in the highest degree indelicate for one judge of the same court thus to review and set aside the action of his associate in his absence, and might lead to unseemly struggles to obtain a hearing before one judge in preference to the other. I have also held, and have prescribed it for myself as a rule of conduct, that the presence of the District Judge, and his consent to a review of his decision, will not vary the course to be pursued."

In United States v. Biebusch, 1 F. 213, 1 McCrary 43, Judge McCrary, sitting as a Circuit Judge in 1880, said:

"In this case and one other I have at this time heard, with the District Judge, motions for new trials in cases tried before him when holding alone the Circuit Court. I have done so at his request, and only for the purpose of advising with and assisting him. It is well settled in this circuit that the rulings of the District Judge while holding the Circuit Court are not subject to be reviewed in the same court, either by the Circuit Judge or the Circuit Justice. I make this announcement so that it may be understood that I am not to be expected, as a rule, to entertain motions for new trials in cases tried in my absence by the District Judge, and that I will only sit with the District Judge in hearing such matters when he desires and requests it. It is not enough that he does not object or consent."

In Cole Silver Mining Co. v. Virginia & Gold Hill Water Co., 6 Fed. Cas. 72, Fed. Cas. No. 2,990, Mr. Justice Field (of the Supreme Court), sitting in the Circuit Court, said:

"II. The injunction, although preventive in form, is undoubtedly mandatory in fact. It was intended to be so by the Circuit Judge who granted it, and the objection which is now urged for its dissolution was presented to him, and was fully considered. I could not with propriety reconsider his decision, even if I differed from him in opinion. The Circuit Judge possesses, as already stated, equal authority with myself in the circuit and it would lead to unseemly conflicts, if the rulings of one judge, upon a question of law, should be disregarded, or be open to review by the other judge in the same case."

In Oglesby v. Attrill, 14 F. 214, Judge Pardee, sitting in the Circuit Court for the Eastern District of Louisiana, in 1882, was asked to set...

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