Gilliland v. Lyons

• Decision Date: 11 April 1960
• Docket Number: No. 16385.,16385.
• Parties: Elsinore C. Machris GILLILAND, also known as Elsinore Machris Gilliland, Appellant, v. Faye LYONS, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.2d 56 (1960)

Elsinore C. Machris GILLILAND, also known as Elsinore Machris Gilliland, Appellant, v. Faye LYONS, Appellee.

No. 16385.

United States Court of Appeals Ninth Circuit.

April 11, 1960.

Wm. L. Murphey, John B. Anson, Charles Wolfe, Los Angeles, Cal., for appellant.

Welburn Mayock, Morris Lavine, Los Angeles, Cal., for appellee.

Before STEPHENS, BARNES and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Appellee filed an amended complaint on November 20, 1956, in the United States District Court stating three separate causes of action. The ground as to each cause of action was, in substance, as follows: number one, that appellant had published false, malicious and slanderous statements concerning appellee's adulterous relationship with appellant's husband; number 2, that appellant had falsely and maliciously published a verified cross-complaint on November 26, 1955, in a divorce proceeding against her husband charging appellee with adultery; and number 3, that appellant had caused a newspaper article to be published on March 23, 1956, reciting the allegations in the above complaint. Appellant's answer, in addition to denying the above allegations, set up an affirmative defense of truth as to the first and third causes of action, and an affirmative defense of privilege as to the second cause of action.

The District Court, sitting without a jury, entered Findings of Fact and Conclusions of Law favorable to appellant on all three causes of action. The court ruled, however, that since appellant did not raise the "specific defense" of truth in the second cause of action, no finding would be made in regard thereto. Judgment for appellant was entered on June 17, 1958. Appellee filed a timely motion for a new trial on June 24, 1958. The grounds for this motion were as follows:

"I

"Irregularity in the Pre-Trial Proceedings by the elimination of `truth\' as to the slanders and libels from the case when `falsity\' had been pleaded by the plaintiff and denied by the defendant;

"II

"Accident at the trial in the failure by inadvertence and excusable neglect on the part of the plaintiff\'s attorney to introduce defendant\'s deposition in evidence;

"III

"Insufficiency of the evidence to justify the decision. The following specifications are urged:

* * * * * *

"D. Finding VII regarding the second cause of action is opposed to the weight of substantial and probative evidence in that there is no evidence * * * to support the finding that she acted in `good faith\' and `without malice\' and reasonably believed the allegations were true. * * *"

Thereafter, on September 30, 1958, the Court granted the motion in part by the following order:

"It Is Ordered that plaintiff\'s motion for a new trial is hereby granted as to plaintiff\'s second claim or cause of action only, and that in all other respects the motion for a new trial is hereby denied. See: Cal.Civ.Code Sec. 47-2(3); Davis v. Hearst, 1911, 160 Cal. 143, 195, 116 P. 530, 552; Tingley v. Times Mirror Co., 1907, 151 Cal. 1, 26, 89 P. 1097, 1107."

The present appeal is taken from the above order. Jurisdiction of the District Court was based on diversity of citizenship under 28 U.S.C. § 1332. Whether this court has jurisdiction is the determinative and controlling question in this appeal.

Appellee contends that an order granting a motion for a new trial is not appealable under 28 U.S.C. § 1291, and that therefore this court is without jurisdiction to decide the matter. Appellant argues that the lower court had no jurisdiction to issue the order because it was made on the court's own initiative and not within the requisite ten-day period prescribed by Rule 59(d), Federal Rules of Civil Procedure, 28 U.S.C.¹ Appellant then urges that such orders, because lacking in necessary jurisdictional power, are appealable.

As a general rule, an order granting a motion for a new trial is not appealable because it is not a "final" order under 28 U.S.C. § 1291. Phillips v. Negley, 1886, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013; Long v. Davis, 9 Cir., 1948, 169 F.2d 982. The order is interlocutory since it destroys the finality of the judgment and there is no "final decision" from which an appeal will lie. Libby, McNeill & Libby v. Malmskold, 9 Cir., 1940, 115 F.2d 786. The order granting a new trial can be "reviewed" on an appeal from a subsequent judgment. Pettingill v. Fuller, 2 Cir., 1939, 107 F.2d 933; United States v. Hayes, 9 Cir., 1944, 172 F.2d 677.

However, this rule is not unqualified: the trial court must have had jurisdiction to make the order; if not, it was acting without power and was therefore incapable of destroying the finality of its own judgment. Freid v. McGrath, 1942, 76 U.S.App.D.C. 388, 133 F.2d 350; Kanatser v. Chrysler Corp., 10 Cir., 1952, 199 F.2d 610. An order made without jurisdiction is considered final and appealable:

"An order granting or refusing a new trial, which the court has the jurisdiction or power to make, is discretionary, and cannot be reviewed. * * * But the question whether or not the court had the jurisdiction or power to make an order granting or refusing a new trial and avoiding a former judgment is always reviewable in the federal courts * * because it goes to the effect and finality of the judgment itself. City of Manning v. German Insurance Co., 8 Cir., 1901, 107 F. 52, 54."

It is clear, therefore, that when a motion for a new trial is made within the ten-day period required under Rule 59(b),² and the motion is granted, it is not appealable even though the order granting it is issued subsequent to that period. Citizens National Bank of Lubbock v. Speer, 5 Cir., 1955, 220 F.2d 889. Conversely, when an order granting a new trial is issued by the court on its own initiative after the ten-day period has run under Rule 59(d), the order is appealable. Freid v. McGrath, supra; Phillips v. Negley, supra. The problem arises, however, where a timely motion is filed, and the court grants the motion after the ten-day period on a ground not stated therein. In those appellate courts where the question has arisen, the order has been construed to arise from the court's own initiative, without jurisdiction, and therefore appealable. Freid v. McGrath, supra; Marshall's U. S. Auto Supply v. Cashman, 10 Cir., 1940, 111 F.2d 140; National Farmers Union Auto & Cas. Co. v. Wood, 10 Cir., 1953, 207 F.2d 659.³

Our primary inquiry, then, is whether the lower court's order was made on grounds stated in the motion or on its own initiative. The order, quoted above, does not specify any reasons for granting a new trial other than "* * * plaintiff's motion for a new trial is hereby granted * * *." As a general rule, no reasons are required; the grounds for the motion are obtained from those stated in the motion itself.⁴ The above language alone would be sufficient to establish the lower court's jurisdiction as based upon appellee's motion rather than the court's own initiative. In Southern Pac. Co. v. United States District Court, 9 Cir., 1951, 190 F.2d 735, 737, this court stated as follows:

"Indeed, the order granting a new trial, refers specifically to `plaintiff\'s motion for a new trial.\' The presumption that official action was regularly performed would seem to require us to resolve any possible ambiguity in the order in favor of a holding that the court acted upon the motion, with respect to which it still had jurisdiction to act."

However, appellant contends that the cases and statute cited after the written words in the order are concerned solely with the inadmissibility of truth in a trial under California law, where truth was not pleaded as a defense. It is then argued that since the admissibility of truth was not questioned or raised in the motion for a new trial, the court was acting on its own initiative and was therefore without jurisdiction.⁵

The statute cited in the order, California Civil Code Section 47, Subdiv. 2(3), delineates the necessary elements of privilege as a defense where defamatory allegations are made in a judicial proceeding.⁶ No reason is urged by appellant as to why the court cited the statute, nor do we assign one except in so far as the court thought that the statutory elements of privilege in a verified cross-complaint had not been properly established, and a new trial must be had in regard to that second cause of action.

In the first case cited in the order, Tingley v. Times Mirror Co., 1907, 151 Cal. 1, 26, 89 P. 1097, 1107, the California Supreme Court discusses, at the page cited, the common law pleas of justification and mitigation. It held that since the defendant had not pleaded truth, nor alleged facts which would establish truth, there was no justification for the particular libel. Further, the court held that the defendant's plea in mitigation was insufficient, because in order to establish such plea it was necessary to allege knowledge of the facts set up in mitigation prior to publication of the libel, as well as believing them true after due investigation. No such allegations were present. The court concluded that in absence of pleas of justification or in mitigation, evidence of facts bearing on knowledge or truth of the libel was inadmissible and properly excluded.

In the second case, Davis v. Hearst, 1911, 160 Cal. 143, 195, 116 P. 530, 552, the court discusses the common law plea of justification in regard to libel. It held that where justification was pleaded, the defendant could also plead his good faith belief of all facts within his knowledge at the time of the publication, even if they tended to establish truth. The court also stated that circumstances in mitigation, though not pleaded by the defendant, could nevertheless be proven if they did not go to the truth of the libel. It construed Tingley v. Times Mirror Co., supra, as showing a situation where the plea in mitigation must be pleaded because going to the truth of the libel. Finally, the court held as follows in regard...