Marian Coal Co. v. Peale

• Decision Date: 19 April 1913
• Docket Number: 1,690.
• Citation: 204 F. 161
• Parties: MARIAN COAL CO. v. PEALE.
• Court: U.S. Court of Appeals — Third Circuit

204 F. 161

MARIAN COAL CO. v. PEALE.

No. 1,690.

United States Court of Appeals, Third Circuit.

April 19, 1913

John H Dando, William P. Brewster, and John T. Lenahan, all of Wilkes-Barre, Pa., for appellant.

Franklin D. Peale, of New York City, Robert Snodgrass, of Harrisburg Pa., and Joseph O'Brien, John P. Kelly, and William J Fitzgerald, all of Scranton, Pa., for appellee.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The plaintiff is a citizen of New York, and in 1909 filed a bill in equity against the Marian Coal Company, a corporation of Delaware, operating a coal washery in Lackawanna county, Pa. The federal jurisdiction depended solely on diversity of citizenship, and under Act March 3, 1875, c. 137, 18 Stat. 470, as amended by Act March 3, 1887, c. 373, 24 Stat. 552 (U.S. Comp. Stat. 1901, p. 508) the federal forum was either in New York or in Delaware. But the suit was actually brought in the Middle district of Pennsylvania, and therefore, as the plaintiff was in the wrong court, the Coal Company was entitled to have the bill dismissed, without submitting to any inquiry into the merits of the dispute. Nevertheless, as the right to be sued in a particular court, and not elsewhere, is merely a personal privilege, a defendant may waive it, expressly or impliedly; and the company did waive it impliedly, no doubt through a natural desire not to omit any ground of objection. For, instead of confining its demurrer to the single ground that the plaintiff had sued in the wrong district, the company set up also the ground that the plaintiff had no case on the merits, and thus required the Circuit Court to pass on the substance of the controversy. To do this is to waive the privilege just referred to, as the Supreme Court has often held; and the Circuit Court was right, therefore, in so deciding. Its opinion, citing the authorities, will be found in 172 Fed.at page 639.

The controversy thereupon took the usual course. The company answered the bill, an examiner was appointed, much testimony was taken, argument was had, and the Circuit Court considered and decided all the questions in controversy. An extended opinion was filed on August 24, 1911, which is reported in 190 F. 376, and on the same date the following decree was entered:

'First. That the defendant be ordered and directed to specifically perform its contract with the plaintiff, by delivering to the plaintiff from the date of this decree the output of its washery.

'Second. That the defendant be enjoined by perpetual injunction from delivering any of the output of the washery and the Holden dump to any one other than the plaintiff.

'Third. That the defendant be and it is hereby required to account to the plaintiff for all moneys advanced by the plaintiff to it under the contract, which has not already been repaid, together with interest thereon, and that the defendant be required to account to the plaintiff for all damages sustained by the plaintiff by reason of the defendant's breach of contract.

'Fourth. That J. Fred Schaffer, Esq., be appointed a special examiner to state an account between the parties and report the same to the court.'

As a whole, the form of this decree is rather interlocutory than final; for, as will be observed, the third and fourth paragraphs direct the company to account, and appoint a special examiner (or master) for this purpose. But the true character of the decree appears upon further examination. The master reported, making some arithmetical calculations, and recommending a money decree in favor of the plaintiff. The court confirmed the report, and in March, 1912, entered a second decree, whose first three paragraphs are identical with the first three in the decree of August 24th. But the fourth paragraph now reads as follows:

'Fourth. That the defendant, the Marian Coal Company, pay to the plaintiff, John W. Peale, within six months from the date hereof, the sum of thirty-four thousand five hundred thirty-three and 94/100 dollars ($34,533.94), with interest from the 1st day of January, 1912, in full payment and satisfaction of the sum due to the plaintiff, John W. Peale, by the defendant, the Marian Coal Company, on the loan or advancement account, and the damages due by reason of the defendant's violation of the contract in suit.'

And a final paragraph disposes of the costs. The appeal before us was taken in February, 1912, and, of course, is from the decree of August, 1911, as the decree of March, 1912, had not yet been entered. The motion to dismiss is put upon the ground that, as the August decree was interlocutory, the appeal should have been taken within 30 days; and the company resists the motion on the ground that the August decree was really final, since the master had nothing judicial to do, but was merely required to perform the ministerial labor of computation-- the facts and the rules of decision having previously been ascertained by the court, with one or two unimportant exceptions. We think the company's contention must be sustained. The two lines of authorities on this subject-- one stating the general rule, and the other stating the exception--are referred to in Latta v. Kilbourn, 150 U.S. 539, 540, 14 Sup.Ct. 207, 37 L.Ed. 1169:

'It is well settled by the decisions of this court that where the purpose of the suit is to obtain an account, such as that prayed for by the bill in this case and directed by the order of October 27, 1886, the decree is of such an interlocutory character that no appeal will lie therefrom. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668; Green v. Fisk, 103 U.S. 518, 26 L.Ed. 486; Keystone Manganese & I. Co. v. Martin, 132 U.S. 91 (10 Sup.Ct. 32) 33 L.Ed. 275; Lodge v. Twell, 135 U.S. 232 (10 Sup.Ct. 745) 34 L.Ed. 153; McGourkey v. Toledo & O.C.R. co., 146 U.S. 544, 550 (13 Sup.Ct. 170) 36 L.Ed. 1083, 1085. In this last case the authorities are thoroughly reviewed as to what constitutes a final decree, and it was laid down as the general rule that if the court made the decree fixing the rights and liabilities of the parties, and thereupon referred the case to a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final, but if it referred the case to him for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final.'

Among the early cases that support the exception is Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404; but a brief extract from Beebe v. Russell, 60 U.S. (19 How.) 286, 15 L.Ed. 668, will sufficiently state the ground on which the exception rests:

'The object of the law and the interpretation of it by this court is to prevent a case from coming to it from the courts below, in which the whole controversy has not been determined finally, and that the same may be done in this court. We say: 'In which the whole controversy has not been determined.' Wherever it has been, and

...