United States v. Broude

• Citation: 299 F. 332
• Parties: UNITED STATES v. BROUDE et al.
• Decision Date: 06 February 1924
• Court: U.S. District Court — District of Minnesota

299 F. 332

UNITED STATES v. BROUDE et al.

United States District Court, D. Minnesota.

February 6, 1924

A. J Hertz and McMeekin, Quinn & Swan, all of St. Paul, Minn., for petitioners.

Lafayette French, Jr., U.S. Atty., of St. Paul, Minn.

McGEE District Judge.

On October 16, 1923, an information was filed against the defendants, Samuel J. and Isadore Broude, in which they were charged with three violations of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). The first count charged unlawful possession of intoxicating liquors by the defendants at their drug store, located at No 2329 Hennepin avenue, in the city of Minneapolis, Minn., on May 26, 1923. The second and third counts charged sales of intoxicating liquor by the defendants at the same place on the 17th and 26th days of May, 1923.

On the day the information was filed, both defendants were arraigned and entered pleas of not guilty to the three counts. The defendant Samuel J. Broude, proceeding by motion entitled in the action, sought an order requiring the United States attorney, the United States marshal, the federal prohibition director for Minnesota, and the clerk of this court to return to him certain articles of property consisting of sixty-one pints of whisky, one gallon and six ounces of alcohol, two keys, and four prescription blanks, form 1403, alleged to have been taken from his possession by prohibition agents under the authority of a search warrant issued on May 26 1923, pursuant to the provisions of the National Prohibition Act.

On November 12, 1923, with their pleas of not guilty to the three counts of the information on the record, and without any application to the court for leave to withdraw them for the purpose of moving to quash the information, the two defendants jointly, in a motion entitled in the action, moved 'to quash the information heretofore filed in said action, charging and accusing the above-named defendants with unlawful possession and two sales of intoxicating liquor for the following reasons. ' The reasons stated are fifteen in number, seven asserting the invalidity of the search warrant and of the proceedings had thereunder, the remaining eight attacking the sufficiency of the information as a pleading. Both motions were heard and denied on November 26, 1923.

The matter is now presented on a petition for a writ of error to review the orders of November 26, 1923. The petition is accompanied by an assignment of errors, three in number, as follows:

I. The court erred in overruling and denying the defendants' motion to require the United States district attorney, the marshal, clerk, and federal prohibition director, to return and redeliver to these defendants the money and property taken from them.

II. The court erred in overruling and denying the defendants' motion to quash the search warrant and suppress the information and evidence obtained thereby.

III. The court erred in overruling and denying the defendants' motion to quash the information in this cause.

The questions presented are whether a writ of error will lie to review an order (a) denying a motion to quash an information; (b) denying a motion to quash a search warrant and suppress the evidence obtained thereunder; or (c) an order refusing to direct the return of property seized under a search warrant while the action in which the proceedings were had is pending and undetermined. The decision of the questions thus presented depends upon the construction and effect of section 6 of the Act of March 3, 1891, 26 Stat.p. 828, which so far as applicable here reads:

'That the Circuit Courts of Appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court * * * in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law.'

The law on this subject has remained substantially unchanged since the enactment of the original Judiciary Act of 1789, 1 Stat. 84, 85. Rev. St. Secs. 691 to 709; 26 Stat.pp. 826, 828, Secs. 5-7. It has been uniformly held that an appeal or writ of error will only lie to review a final judgment, decree, or decision, with the exceptions found in section 7 of the Act of March 3, 1891, which allows an appeal to the Circuit Court of Appeals from an interlocutory order or decree granting or continuing an injunction, and the Act of June 6, 1900, 31 Stat. 660, c. 803, which allows an appeal from an interlocutory order appointing a receiver. Keystone Iron Co. v. Martin, 132 U.S. 91, 10 Sup.Ct. 32, 33 L.Ed. 275; Lodge v. Twell, 135 U.S. 232, 235, 10 Sup.Ct. 745, 34 L.Ed. 153; McLish v. Roff, 141 U.S. 661, 665, 12 Sup.Ct. 118, 35 L.Ed. 893; McGourkey v. Toledo & Ohio Railway, 146 U.S. 536, 13 Sup.Ct. 170, 36 L.Ed. 1079; Luxton v. North River Bridge Co., 147 U.S. 337, 341, 13 Sup.Ct. 356, 37 L.Ed. 194; La Bourgogne, 210 U.S. 95, 112, 113, 28 Sup.Ct. 664, 52 L.Ed. 973; Robinson v. Belt (C.C.A. 8) 56 F. 328, 5 C.C.A. 521; Riddle v. Hudgins (C.C.A. 8) 58 F. 490, 7 C.C.A. 335; Gunn v. Black (C.C.A. 8) 60 F. 159, 160, 8 C.C.A.

542; Hamner v. Scott (C.C.A. 8) 60 F. 343, 344, 8 C.C.A. 655; Gladys Belle Oil Co. v. Mackey (C.C.A. 8) 216 F. 129, 130, 132 C.C.A. 373; United States v. Big Horn Sheep Co. (C.C.A. 8) 276 F. 710, 711; Pierce v. National Bank of Commerce (C.C.A. 8) Fed. 100, 103.

In the Act of March 3, 1891, the words 'final decision' are substituted for the phrase 'final judgments and decrees,' found in earlier statutes; but it is settled that, while the words used are different, the two expressions mean the same thing. Harrington v. Holler, 111 U.S. 796, 797, 4 Sup.Ct. 697, 28 L.Ed. 602; Brush Electric Co. v. Electric Imp. Co. (C.C.A. 9) 51 F. 557, 561, 2 C.C.A. 373; Cassatt v. Mitchell Coal & Coke Co. (C.C.A. 3) 150 F. 32, 34, 81 C.C.A. 80, 10 L.R.A. (N.S.) 99.

In the fifth and sixth sections of the same act, providing that appeals may be taken from the District Court and Circuit Court of Appeals direct to the Supreme Court, the word 'final' was omitted. It was contended that the omission enlarged the appellate jurisdiction of the Supreme Court under this act to include interlocutory orders, but that court held that its jurisdiction in such cases was limited to final judgments and decrees. Harrington v. Holler, 111 U.S. 796, 4 Sup.Ct. 697, 28 L.Ed. 602; Luxton v. North River Bridge Co., 147 U.S. 337, 37 L.Ed. 194; McLish v. Roff, 141 U.S. 661, 665, 12 Sup.Ct. 118, 35 L.Ed. 893; Union Mutual Life Ins. Co. v. Kirchoff, 160 U.S. 374, 16 Sup.Ct. 318, 40 L.Ed. 461.

The evident tendency of the appellate courts is to place a rather strict construction upon the statutory provisions dealing with their appellate jurisdiction. In McLish v. Roff, supra, it is said:

'In respect to appeals there is a difference in the practice of the English chancery courts, in which appeals may be taken from an interlocutory order of the Chancellor to the House of Lords, and the practice of the United States chancery courts, where the right of appeal is by statute restricted to final decrees, so that a case cannot be brought to this court in fragments. From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error * * * have been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal. Forgay v. Conrad, 6 How. 201, 204. The construction contended for would render the act under consideration inconsistent with this long-established object and policy. More than this, it would defeat the very object for which that act was passed.'

In Luxton v. North River Bridge Co., 147 U.S. 337, 341, 13 Sup.Ct. 356, 358 (37 L.Ed. 194), it is said:

'The action of that court in this case, as in other cases on the commonlaw side, is not reviewable by this court by writ of certiorari (United States v. Young, 94 U.S. 258), but only by writ of error, which does not lie until after final judgment, disposing of the whole case, and adjudicating all the rights, whether of title or of damages, involved in the litigation. The case is not to be sent up in fragments by successive writs of error.'

The cases on this subject are collected and reviewed at great length in Lodge v. Twell, 135 U.S. 232, 10 Sup.Ct. 745, 34 L.Ed. 153, and McGourkey v. Toledo & Ohio Central Railway Co., 146 U.S. 536, 13 Sup.Ct. 170, 36 L.Ed. 1079.

In the case of Gunn v. Black, supra, the order involved was one made for the purpose of executing a decree after an appeal from such decree had been perfected, but reserving final action until a commissioner should report his proceedings to the court at a subsequent term. In dismissing the appeal Judge Sanborn, speaking for the court, after quoting from section 6 of the Act of March 3, 1891, said:

'Under this statute, a final judgment or decree which determines all the matters in controversy in the suit, or a judgment or decree that finally determines the rights of some of the parties to the litigation who are claimed to be separately, not jointly, liable with others against whom the litigation continues (Hill v. Railroad Co., 140 U.S. 52, 11 Sup.Ct. 690), or a decree which determines a collateral matter distinct from the general subject of litigation, and finally settles that controversy (Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 224, 10 Sup.Ct. 736), is subject to review in this court by writ of error or appeal (citing cases). But with the exception of orders granting or continuing injunctions this statute gives no jurisdiction to this court to review any order made in the progress of the case, before or after

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