Josevig-Kennecott Copper Co. v. James F. Howarth Co.

• Decision Date: 01 December 1919
• Docket Number: 3353.
• Parties: JOSEVIG-KENNECOTT COPPER CO. v. JAMES F. HOWARTH CO.
• Court: U.S. Court of Appeals — Ninth Circuit

261 F. 567

JOSEVIG-KENNECOTT COPPER CO. v. JAMES F. HOWARTH CO.

No. 3353.

United States Court of Appeals, Ninth Circuit.

December 1, 1919

Merritt Lantry & Merritt, of Spokane, Wash., and Roberts, Wilson &amp Skeel, of Seattle, Wash., for appellant.

J. F Ailshie, of Coeur d'Alene, Idaho, and Lester P. Edge and Joseph McCarthy, both of Spokane, Wash., for appellee.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The appellee, in a suit against the appellant and its trustees for the specific performance of a contract, obtained a decree requiring the appellant to transfer to the appellee 260,000 shares of the appellant's treasury stock. The appellee moves to dismiss, on the ground that since the decree the appellant has complied therewith and transferred the stock to the appellee, and the latter has sold and disposed of the same to a number of purchasers, who now own the same.

The appellant by its affidavit shows that the said stock was issued and transferred to the appellee more than 90 days after the date of the decree, and when a supersedeas could not be had, and that this was done solely because of duress exercised by the appellee by means of threats to institute contempt proceedings for the appellant's failure to comply with the order of the court. There having been no judgment for costs in the court below, the appellee argues that there is no longer a pending controversy between the parties to the suit. It is true that courts do not try academic questions, where neither party will be affected by the result; but by the decided weight of authority it is established that compliance with the judgment or decree of a court by payment or performance 'is no bar to an appeal or writ of error for its reversal, particularly where repayment or restitution may be enforced, or the effect of the compliance may be otherwise undone, in case of a reversal.' 3 C.J. 675. In Dakota County v Glidden, 113 U.S. 222, 5 Sup.Ct. 428, 28 L.Ed. 981, the court said:

'There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money, and a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal.'

In O'Hara v. McConnell, 93 U.S. 150, 23 L.Ed. 840, it was held that the making of a conveyance as ordered by the decree of the court does not deprive the defendant of the right of appeal. The court said:

'The parties must either have obeyed the order of the court, or taken an appeal, and given a supersedeas bond in a sum so large that they were probably unable to do it.'

In Erwin v. Lowry, 7 How. 172, 184 (12 L.Ed. 655), the court said:

'In no instance within our knowledge has an appeal or writ of error been dismissed on the assumption that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed, it is the duty of the inferior court, on the cause being remanded, to restore the parties to their rights.'

Those cases were followed by this court in Hoogendorn v. Daniel, 202 F. 431, 120 C.C.A. 537.

If the decree herein were reversed, and the cause remanded, and the court below were to find in favor of the appellant, that court would not be powerless to afford the appellant substantial relief, notwithstanding that the shares of stock have been transferred to the appellee. The motion is denied.

It is contended that the court below was without jurisdiction of the cause. The appellee brought the suit in the District Court for the Eastern District of Washington, against the appellant and another corporation, each of which had its principal place of business in the Western district of Washington, and made parties defendant certain individuals, citizens of Washington, who resided in the Eastern district. It is admitted that the court below had jurisdiction under section 52 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 (Comp. St. Sec. 1034)), unless the suit was one of a local nature within the terms of section 204, Rem. & Ball. Codes of Washington, which makes local 'all questions involving the rights to the possession or title to any specific article of personal property.'

The appellee contends, and the court below held, that the suit was not local, but transitory. It is admitted that the question whether the action is local or transitory is to be determined by the law of the state. Potomac Milling & Ice Co. v. Baltimore & O.R. Co. (D.C.) 217 F. 665; Kentucky Coal Lands Co. v. Mineral Dev. Co., 219 F 45, 133 C.C.A. 151; Huntington v. Attrill, 146 U.S. 657, 669, 13 Sup.Ct. 224, 36 L.Ed. 1123. The Supreme Court of Washington has held transitory a suit for the specific performance of an agreement to convey realty, Morgan v. Bell, 3 Wash. 554, 28 P. 925, 16 L.R.A. 614; an action to enforce a trust in real and personal property, State ex rel. Scougale v. Superior Court, 55 Wash. 328, 104 P. 607, 133 Am.St.Rep. 1030; an action to reform a deed, Rosenbaum v. Evans, 63 Wash. 506, 115 P. 1054; and an action to recover for the use and occupation of land in another state, Sheppard v. Coeur d'Alene Lumber Co., 62 Wash. 12, 112 P. 932, 44 L.R.A. (N.S.) 267, Ann. Cas. 1912C, 909. Directly in point is Lively v. Huseby, 60 Wash. 47, 110 P. 673, in which the suit was brought to recover certain shares of stock issued to the defendant Huseby and to compel a foreign corporation to transfer the stock upon its books; the corporation having a branch office in the...