Yanow v. Weyerhaeuser Steamship Company, 15452.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation274 F.2d 274
Docket NumberNo. 15452.,15452.
PartiesHarold YANOW, Appellant, v. WEYERHAEUSER STEAMSHIP COMPANY, a Corporation, Appellee.
Decision Date12 November 1959

Peterson, Pozzi & Lent, Nels Peterson, Portland, Or., Gerald H. Robinson, Portland, Or., for appellant.

Lasher B. Gallagher, San Francisco, Cal., for appellee.


POPE, Circuit Judge.

After a division of this court had heard this case and decided it upon the merits, it reversed the judgment of the district court; and after petition for rehearing filed by appellee had been rejected and its petition to the Supreme Court for certiorari had been denied, the appellee filed the present motions to recall mandate, to vacate judgment, and to dismiss the appeal. The same panel heard these motions and denied them. Upon a petition for rehearing of the motions it granted that petition, and on the recommendation of the majority of the judges of that division, the motions have been reheard by the court sitting en banc.1

The facts upon which the motions are predicated are as follows: The jury verdict in favor of defendant Weyerhaeuser was returned and filed October 25, 1956; judgment on that verdict, signed by the district judge, and bearing date October 25, 1956, was filed November 2, 1956. On November 5, 1956, after service of a copy thereof upon opposing counsel, counsel for Yanow, the plaintiff, who is the present appellant, filed in the court below a "motion for extension of time within which to file a motion for new trial." This was supported by an affidavit of plaintiff's counsel, and on the same day the court made an order that the time within which plaintiff might file his motion for a new trial was extended to and including November 20, 1956. A copy of the motion (not including proof of service,) of the supporting affidavit, and of the order granting the extension of time, are set forth in the margin.2

On November 20, 1956, the plaintiff Yanow served and filed a formal motion for new trial specifying and setting forth eight grounds for his motion. On December 5, 1956, a formal order denying a new trial was filed and on December 19, 1956, plaintiff served and filed his notice of appeal from the judgment and verdict for the defendant.

Appellee asserts that its motions now before us must be granted for the reason that the appeal was not taken within the time allowed by the Federal Rules of Civil Procedure. It calls attention to the provision of Rule 73(a), 28 U.S.C.A."* * * the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from," and notes that the judgment was dated October 25, 1956, marked filed November 2, 1956, while the notice of appeal was not filed until December 19, 1956. Appellee says that while the same rule provides that "The running of the time for appeal is terminated by timely motion made pursuant to any of the rules hereinafter enumerated," (which includes a motion for new trial under Rule 59), yet the motion for new trial filed November 20, 1956, was not timely made since Rule 59(b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment", and Rule 6(b) provides that the court "may not extend the time for taking any action under rules * * * 59(b)."

It is appellee's contention that this court never acquired jurisdiction of the appeal and that all subsequent actions, including its judgment reversing the decision of the district court, were null and void.

It is clear that when this court first handed down its decision on November 21, 1957, and again when its amended opinion was filed on February 21, 1958, it necessarily determined that it had jurisdiction. Of course the point presently urged, namely, that the appeal was not taken within time, was not then argued or presented by either party; — the point was not raised until 11 months after the first opinion when the present motions were made on October 16 and October 23, 1958. But as stated in Stoll v. Gottlieb, 305 U.S. 165, 171, 59 S.Ct. 134, 137, 83 L.Ed. 104: "Every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter."3

That the appellee had not then raised the question is immaterial for as this court said in Leishman v. Associated Wholesale Electric Co., 9 Cir., 128 F.2d 204, 205: "The question is whether we have jurisdiction of the appeal. Though not raised by the parties, the question is here and has to be decided." Again in Guerin v. Guerin, 239 F.2d 909, 913, we said: "This Court must necessarily give first consideration to this jurisdictional point, whether or not the parties raise it." In short, the question of jurisdiction on appeal was necessarily a question before the court for decision.

Since the question of this court's jurisdiction of the appeal was thus an issue in the case, the reversal of the judgment below was a tacit determination of the court's jurisdiction and a final adjudication of that issue. If this final adjudication was erroneous, it was subject to correction upon review in a higher court, or upon rehearing in this court. But such a judgment, whether erroneous or not, becomes res judicata. Stoll v. Gottlieb, supra.4

When a district court rendered such a final judgment with respect to its own jurisdiction, relief therefrom is obtainable under Rule 60(b) F.R.Civ.P.5 That rule has been made applicable to proceedings in this court by our Rule 8, subd. 1, 28 U.S.C.A., which provides: "The Federal Rules of Civil Procedure, 28 U.S.C.A., whenever applicable, are hereby adopted as part of the rules of this court." It seems plain that the motions now before us must be taken to be motions made pursuant to Rule 60(b) as adopted and made applicable to this court.

When these motions were first presented to the division of the court which originally decided the case, they were denied upon the ground that "such a motion cannot be considered after the term in which the judgment becomes final." The court then relied upon authorities cited in the opinion including O. F. Nelson & Co. v. United States, 9 Cir., 169 F.2d 833.6 A rehearing of that order denying the motions was granted. In its petition for that rehearing appellee correctly demonstrated that the rule stated in the Nelson case, supra, to the effect that such motions could not be considered after the term in which the judgment becomes final, was no longer law. § 452, Title 28, U.S.C.A., adopted by the Act of June 25, 1948, provided that: "The continued existence or expiration of a term of court in no way affects the power of the court to do any act or take any proceeding." Plainly the expiration of the term has no bearing upon the power of this court to entertain or to act upon the present motions.

It is to be noted, however, that Rule 60(b) contains an express condition upon which the relief there provided for may be granted as follows: "The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken."

If the judgment with respect to which relief is here sought were one which was truly void in the fullest sense of that term, that is to say, if it were one which was subject to collateral attack, because legally ineffective for any purpose, then it is possible that the "reasonable time" limitation might not apply. Support for that view may be found in 7 Moore's Fed.Practice, § 60.25(4), p. 274, (2nd ed. 1955).7

But the judgment here under consideration cannot be said to be a void judgment in that sense.

Appellee suggests that the matter now presented is simple in that had the court made proper inquiry concerning the matter at the time of its decision, it would have discovered that it was without jurisdiction of the appeal. Appellee states: "It is obvious that if the court had investigated the subject matter of its own jurisdiction it would have been compelled to dismiss the appeal for lack of jurisdiction." In view of this, says appellee, "everything else which has occurred, was and is a nullity * * * therefore the motions of appellee should be granted."

The problem here cannot be disposed of merely by a holding that action within the time provided by the rules is "jurisdictional." Many cases have held that the appeal time provided by Rules 59(b) and 73(a) is "`mandatory and jurisdictional' and `cannot be extended by * * order of the court.'" Edwards v. Doctors Hospital, 2 Cir., 242 F.2d 888, 891; Howard v. Local 74, etc., 7 Cir., 208 F.2d 930, 932; Safeway Stores v. Coe, 78 U.S. App.D.C. 19, 136 F.2d 771, 774, 148 A.L.R. 782.

The difficulty is that the word "jurisdictional" has more than one meaning. As Judge Learned Hand has observed, "`Jurisdiction' is a treacherous word." Baltimore & O. R. Co. v. United States, D.C.N.D.N.Y., 22 F.Supp. 533, 537. Sometimes whether jurisdiction exists has been confused with the question whether the complaint states a cause of action. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912. Thus it may properly be said that existence of diversity of citizenship or of the requisite amount in controversy, is a prerequisite to the jurisdiction of a federal court; but it is also clear that if the court in question determines that these requirements are satisfied, and that it has jurisdiction, it is certain that such a determination, even if demonstrably wrong, is not a nullity or a truly void judgment, for it cannot be questioned collaterally.

The distinction between cases where certain facts are strictly jurisdictional in the sense that without them the act of the court is a mere nullity, and those cases in which the facts are only quasi...

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