
    194 F. 49
    MITCHELL v. PORTER.
    No. 1,976.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 5, 1912.
    
      Charles J. Heggerty and McGowan & Clark, for plaintiff in error.
    Metson, Drew & MacKenzie and E. H. Ryan, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   ROSS, Circuit Judge

(after stating the facts as above). The motion to dismiss the writ of error is denied.

It is based upon these grounds:

“First. That said order is not a final order or judgment within the contemplation of the Alaskan Code.

“Second. That admitting, pro argumenti, that the order denying the motion to discharge from custody was final and therefore appealable, defendant had made a prior application which had been denied, and had not appealed from the decision of the court, and the order was therefore res judicata.”

The Code referred to permits a writ of error from this court to review a final order of a District Court of Alaska. Section 504, Carter’s Ann.Code Civ.Proc. Alaska; Tornanses v. Melsing, 106 F. 775, 45 C.C.A. 615. The prior order refusing the discharge of the defendant from custody was made before the trial of the case, and consequently before judgment, and was therefore interlocutory. The cause of action counted on in the amended complaint on which the case was tried was a different cause from that stated in the original complaint upon which the prior arrest was based.

Passing the point made as to the propriety of permitting such a change of the cause of action, it is to be observed that the amended complaint was not only without any charge of fraud, but was not supplemented by any affidavit of any character. The order sought to be reviewed by the present writ of error was entered after the rendition of the judgment in the action, and was a denial of the defendant’s motion made to strike from that judgment the provision reciting his provisional arrest and refusing to discharge him from custody, and also directing that execution issue against the person of the defendant after return of execution against his property unsatisfied in whole or in part. This was a final order. It, in effect, not only directed that he be kept a prisoner, but that execution be issued upon the judgment to enforce his imprisonment.

"Upon the merits, to state the case is to decide it. Even if it be conceded that the preliminary arrest of the defendant was authorized, which we are far from doing in view of the affidavit upon which it was based, the cause of action was totally changed by the amended complaint upon which the trial was had, in which amended complaint there is not a word even tending to charge the defendant with any fraud in connection with his alleged neglect and refusal to pay the amount therein alleged to be due from him to the plaintiff; and, as has been shown, was not supplemented by any affidavit of any character. “To authorize a judgment convicting the defendant of fraud,” said the Supreme Court of California in Davis v. Robinson, 10 Cal. 411, “the facts upon which the charge is based must be specifically alleged in the complaint. A judgment is the determination of the rights of the parties upon the facts pleaded, and it cannot in any event exceed the relief warranted by the case stated in the complaint. Execution against the person, unlike an execution against the property of the defendant, which follows, as a matter of course, upon a money judgment, can only issue upon direction of the court to that effect, based upon the special facts found, and such facts cannot be considered by the jury unless averred in the pleadings. Side issues upon affidavits are not the issues upon which juries pass. The arrest upon affidavit is only intended to secure the presence of the defendant until final judgment; and, in order to detain and imprison his person afterwards, the fraud must be alleged in the complaint, be passed upon by the jury, and be stated in the judgment. In nearly every case in which an arrest is allowed by the statute the facts authorizing the arrest also constitute the cause of the action, and, of course, must necessarily be stated in the complaint. In the few instances where the circumstances authorizing an arrest occur subsequently to the filing of the complaint, application should be made to the court either to amend the original, or to file a supplemental complaint, so as to set forth the facts upon which execution against the person of the defendant will be asked in the enforcement of the judgment sought. By requiring the charges to be stated in the complaint, the rights of the defendant will be fully guarded. He can then meet the charges, and have a fair opportunity of defending himself by a trial before the jury. There may be some inconvenience in blending, on the same trial, a question of indebtedness and a question of fraud, but we perceive no way of avoiding this and giving full protection to the defendant. A special finding on the question of fraud should be always taken, so as to keep it as distinct as possible from the main subject of controversy.” Substantially the same views were taken by the same court in the subsequent case of Payne v. Elliot, 54 Cal. 339, 342, 35 Am.Rep. 80, where it was said:

“But the judgment for fraud exceeds the relief to which the plaintiff was entitled by his complaint, for the only averments upon the subject of fraud are ‘that the defendants received said shares of stock in a fiduciary capacity, as the agents of this plaintiff and not otherwise,’ and ‘that defendants were and are guilty of fraud in receiving and converting said stock to their own use.’ It is not altogether clear how a person is chargeable with fraud by receiving shares of stock in a fiduciary capacity; for, as the term ‘fiduciary’ imports, the defendants must have received them rightfully to hold in trust for the plaintiff. But if the defendants, as trustees of the plaintiff, fraudulently converted the stock to their own use, the facts which constituted the imputed fraud should have been stated; for fraud is never presumed, but must be proved, and, to be proved, the facts upon which the charge is based must be specifically alleged in the complaint. Davis v. Robinson, 10 Cal. 412.

“Without any issuable averments upon the subject the court finds ‘that the defendants were the agents of the plaintiff, that the plaintiff delivered the stock to them to hold as security for the payment of $409 which he owed to them, and that" they received it in the course of their employment as such agents and in a fiduciary capacity.’ Upon these findings the court ‘adjudged the defendants guilty of having fraudulently misapplied and converted said one hundred shares of the capital stock of the Northern Belle Mill & Mining Company to their own use, and that the defendants be arrested and held in custody until they pay the amount of this judgment, or until they shall otherwise be legally discharged from.custody.’ The judgment in this respect is not warranted by the case stated in the complaint or the findings.

“Some time after the judgment had been rendered, the court below undertook, by an order entered upon the minutes of the court, to modify it by ‘striking out the last six lines therein’; but that does not cure the error. The judgment convicting the defendants of fraud and ordering their arrest should be vacated.

“It is hardly necessary to remand the cause for a new trial for that purpose, but the court below is directed to strike from the judgment the following matter, viz.: '‘And that plaintiff is entitled to an order of arrest against said defendants until the same shall be paid. * * * And it is further ordered, adjudged, and decreed that defendants were the agents of the said plaintiff, and that they received 100 shares of the capital stock of the Northern Belle Mill & Mining Company, of the value of $2,950; that they received the same as the agents of the said plaintiff, and in a fiduciary capacity, and refused to deliver the same to plaintiff on demand; and that they, the said defendants, converted the same to their own use, and against the will or consent of said plaintiff, by reason of which they are hereby adjudged guilty of fraud. And it is further ordered, adjudged, and decreed that said defendants be arrested, and held in custody until they pay the amount of this judgment, or until they otherwise legally be discharged from custody/ ”

We are of the opinion that the views thus expressed in the cases cited are sound, and we therefore reverse the order in question, with direction to the court below to strike from the judgment the clauses hereinabove quoted, and to discharge the defendant from custody.

Ordered accordingly..  