Kanatser v. Chrysler Corp., 4434.

• Decision Date: 19 January 1953
• Docket Number: No. 4434.,4434.
• Citation: 199 F.2d 610
• Parties: KANATSER v. CHRYSLER CORP. et al.
• Court: U.S. Court of Appeals — Tenth Circuit

199 F.2d 610 (1952)

KANATSER v. CHRYSLER CORP. et al.

No. 4434.

United States Court of Appeals, Tenth Circuit.

August 28, 1952.

Rehearing Denied October 22, 1952.

Writ of Certiorari Denied January 19, 1953.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Phil E. Daugherty, Oklahoma City, Okl., for petitioner.

D. A. Richardson of Richardson, Shartel & Cochran, Oklahoma City, Okl., for respondent.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

Writ of Certiorari Denied January 19, 1953. See 73 S.Ct. 388.

MURRAH, Circuit Judge.

We granted petitioner leave to file an application for a writ of certiorari to review an order of the District Court for the Western District of Oklahoma, granting a new trial in this case. The application alleges and the facts are, that in this suit for personal injuries the petitioner obtained a jury verdict against the respondent on November 3, 1950, in the sum of $33,283. The Clerk's Minute Book shows that the verdict was ordered filed, judgment was entered thereon, and counsel directed to prepare a journal entry accordingly. Thereafter, and within ten days, the respondent, defendant below, renewed its motion for judgment in its favor or in the alternative a new trial. The motion alleged numerous errors in the trial of the case, but did not complain of the excessiveness of the verdict. After having been continued from time to time, the motions came on for hearing on the 27th day of June, 1951. After argument, the court expressed the view that the jury verdict was excessive and ordered a remittitur of that part of the judgment in excess of $15,000. Petitioner was granted five days in which to accept or reject the remittitur and the matter was continued until July 10, 1951.

A journal entry filed July 16, 1951, ordered the judgment of November 3, 1950, set aside, and granted defendant's motion for a new trial on the grounds "that the verdict is excessive and because of the failure of the plaintiff to file a remittitur as ordered by the court." A journal entry filed on July 18, 1951, recited the appearance of the parties on the 16th day of July, overruled the defendant's motion for entry of judgment in its favor, and further recited that "the defendant's alternative motion for new trial has been disposed of as shown by the journal entry of judgment filed herein on the 16th day of July, 1951." From the order granting a new trial, the petitioner timely appealed to this court. We dismissed the appeal on the grounds that the order granting the new trial was not appealable. Kanatser v. Chrysler Corporation, 10 Cir., 195 F.2d 104. Thereafter, we granted leave to file this application for a writ of certiorari, to determine whether in the circumstances, the order granting the new trial is reviewable by the extraordinary common law remedy invoked.

The basis of the application for the writ is, that inasmuch as the new trial was granted more than ten days after the entry of judgment on a ground not asserted in the timely motion for a new trial, the order was in excess of the court's jurisdiction, and therefore reviewable on writ of certiorari.

Since the first Judicial Act of September 24, 1789, Sec. 14, 1 Stat. 73, 81, the Federal courts have been empowered to issue "all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." And, see 28 U.S.C.A. § 1651. But, we have been repeatedly admonished that these common law writs are not substitutes for authorized appeals, and do not confer appellate jurisdiction not otherwise existing. Historically the courts have utilized these writs in extraordinary or exceptional circumstances to confine lower courts to their jurisdiction or to require them to exercise a mandatory jurisdiction, in the interest of the proper administration of justice. In re Chetwood, 165 U.S. 443, 17 S.Ct. 385, 41 L.Ed. 782; McClellan v. Carland, 217 U.S. 268, 30 S. Ct. 501, 54 L.Ed. 762; Adam v. U. S. ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041.

Thus, the writ of certiorari was utilized by the Supreme Court to confine the District Court within its jurisdiction in In re Chetwood, supra. The writ of mandamus was deemed appropriate to compel the lower court to exercise its jurisdiction in McClellan v. Carland, supra. More recently, the issuance of a writ of habeas corpus, as an incident to the exercise of appellate jurisdiction, was held not to be an abuse of judicial discretion in Adams v. U. S. ex rel. McCann, supra. In Roche v. Evaporated Milk Association, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185, the Supreme Court reversed the Court of Appeals, 9 Cir., 130 F.2d 843, for the issuance of a writ to the District Court, mandamusing it to reinstate pleas in abatement and replications and to try issues of fact thus raised. The court was of the opinion that the District Court had acted within its jurisdiction and had rendered a decision, which, if erroneous, involved no abuse of judicial power, and that in issuing the writ, the Court of Appeals had substituted mandamus for appeal contrary to the statutes and policy of Congress restricting the court's appellate review to final judgments of the District Courts. A writ of prohibition was availed of by the Supreme Court in Ex parte Republic of Peru, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014, to restrain the District Court from exercising further jurisdiction in an admiralty suit, although the case was one in which direct appellate jurisdiction was vested in the Court of Appeals. Still more recently, the Supreme Court in United States Alkali Export Association v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554, granted a writ of certiorari to review an order of the District Court overruling a motion to dismiss a proceedings on the grounds that it lacked jurisdiction over the subject matter, even though the order was in no sense a final adjudication. The Supreme Court was prompted to issue the writ on the grounds that the suit, brought by the United States under the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note, was within the exclusive jurisdiction of the Federal Trade Commission, and that the exercise of jurisdiction by the District Court to a final judgment would impose great hardships upon the defendants, and also infringe the Congressional policy of conferring primary jurisdiction upon the Federal Trade Commission. Mandamus has been deemed inappropriate and appropriate to review purely interlocutory transfer orders under 1404(a), 28 U.S.C. Magnetic Engineering & Manufacturing Co. v. Dings Manufacturing Co., 2 Cir., 178 F.2d 866; Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329; Gulf Research & Development Co. v. Harrison, 9 Cir., 185 F.2d 457; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 185 F.2d 766; Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111; Clinton Foods, Inc., v. United States, 4 Cir., 188 F.2d 289; Anthony v. Kaufman, 2 Cir., 193 F.2d 85; Gulf Research & Development Co. v. Leahy, 3 Cir., 193 F.2d 302; Wiren v. Laws, D.C.Cir., 194 F.2d 873.

These cases serve to demonstrate the versatility of common law writs to effectuate the ends of justice, where more orthodox processes might tend to obstruct it. And, it becomes apparent that in determining whether the writ should issue, we should give first consideration to whether the trial court had jurisdiction to grant the motion for new trial. If it did, the writ obviously should be denied. If on the other hand, the court lacked jurisdiction to grant a new trial, we should next consider whether appellate jurisdiction lies to review the order, for as we have seen, the writ should not be utilized to enlarge appellate jurisdiction.

Undoubtedly, the trial court was authorized to grant a timely motion for new trial on any grounds asserted therein. Rule 59(b), Federal Rules of Civil Procedure, 28 U.S.C. The court was also authorized under Rule 59(d) to, "Not later than 10 days after entry of judgment", of its own initiative order a new trial for any reason for which new trials are authorized, whether asserted in the timely motion for new trial or not. And, such orders being within the jurisdiction of the court and interlocutory, are not appealable. City of Manning v. German Ins. Co., 8 Cir., 107 F. 52; Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Barbarino v. Stanhope S. S. Co., 2 Cir., 150 F.2d 54. But, it is well settled in this and other jurisdictions that if the court purports to grant a motion for new trial on any ground not asserted therein, it acts upon its own initiative and hence must do so within the ten day limitation prescribed by Rule 59(d), supra. Freid v. McGrath, 76 U.S.App.D.C. 388, 133 F.2d 350; Marshall's U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140; Bailey v. Slentz, 10 Cir., 189 F.2d 406.

Thus, in Freid v. McGrath, supra, the trial court purported to grant an amended motion for new trial for inadequacy of damages, a ground not set up in the motion or amended motion. Following our Marshall case, the Court of Appeals held the order in excess of jurisdiction. The court said that 76 U.S.App.D.C. 388, 133 F.2d 355 "To contend that when a motion for new trial has been timely filed, the time within which the judge may act to grant a new trial upon other grounds is thereby indefinitely extended misses the purpose of the ten-day limitation imposed by paragraph (d) of the rule." And, the court went on to say that "If the judge who presided at a trial is not sufficiently persuaded of the need for a new trial so that he acts within ten days following the entry of judgment — which may occur some time after the submission of the case — then the rule specifies that he may not thereafter act, of his own initiative, to require a new trial." There is good reason...