
    157 F. 732
    J. P. JORGENSON CO. v. RAPP et al.
    No. 1,511.
    Circuit Court of Appeals, Ninth Circuit.
    Dec. 2, 1907.
    
      William T. Love, Albert H. Elliot, and Heid & Love, for appellant.
    Jno. R. Winn and Newark L. Burton, for appellees.
    
      Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge

(after stating the facts as above).

The appellees move to dismiss the appeal on the ground that this court has no jurisdiction to entertain the appeal in this case, for the reason that the amount involved or the value of the subject-matter does not exceed the sum of $500. Section 504 of the Alaska Code of Civil Procedure provides as follows: “Appeals and writs of error may be taken' and prosecuted from the final judgments of the District Court for the District of Alaska or any division thereof direct to the Supreme Court of the United States in the following cases: * * * and that in all other cases where the amount involved or the value of the subject-matter exceeds five hundred dollars the United States Circuit Court of Appeals for the Ninth Circuit shall have jurisdiction to review by writ of error or appeal the final judgments, orders, of the District Court.”

Section 507 of the same Code provides as follows: “An appeal may be taken to the Circuit Court of Appeals from any interlocutory order granting or dissolving an injunction, refusing to grant or dissolve an injunction, made or rendered in any cause pending before the District Court within sixty days after the entry of such interlocutory order. The proceedings in other respects • in the District Court in the cause in which such interlocutory order was made shall not be stayed during the pendency of such appeal, unless otherwise ordered by the District Court.”

The appellees refer to the punctuation in the latter part of section 504, giving the Circuit Court of Appeals “jurisdiction to review, upon writ of error or appeal, the final judgments, orders, of the District Court.” It is claimed that this part of the section should read “the final judgments or orders,” or “the final judgments and orders.” This is undoubtedly correct. The conjunction “or” or “and” has probably been accidentally omitted and a comma inserted where it does not belong. The contention of the appellees is that this section, thus corrected, must then be reconciled with section 507, by construing the latter section as though it provided for an appeal only from a final order of the District Court “where the amount involved or the value of the subject-matter exceeds five hundred dollars.” We do not think this section can be so construed. It provides distinctly for an appeal from an interlocutory order, and provides, further, that the “proceedings in other respects in the District Court in the cause in which such interlocutory order was made shall not be stayed during the pendency of such appeal, unless otherwise ordered by the District Court.”

Act March 3, 1891, c. 517, § 7, 26 Stat. 828, establishing the Circuit Court of Appeals, originally provided that an appeal might be taken from an interlocutory order granting or continuing an injunction in a District or Circuit Court to the Circuit Court of Appeals, but limited the appeal to causes in which an appeal “from a final decree” might be taken under the provisions of the act to the Circuit Court of Appeals. This limitation was repealed by Act April 14, 1906, c. 1627, 34 Stat. 116, and in lieu thereof it is now provided “in any case an appeal may be taken from such interlocutory order or decree granting or continuing such injunction * * * to the Circuit Court of Appeals.”

Section 507 of the Alaska Code and section 7 of the act of March 3, 1891, are in accord and should be read in pari materia. In re Alexander McKenzie, 180 U.S. 536, 548, 21 S.Ct. 468, 45 L.Ed. 657. The purpose of Congress in this legislation has been to enlarge and not to restrict the jurisdiction of the Circuit Court of Appeals with respect to interlocutory injunctions. Richmond v. Atwood, 52 F. 10, 22, 2 C.C.A. 596, 17 L.R.A. 615; Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 41 L.Ed. 810. It is plain that the jurisdiction of the Circuit Court of Appeals on appeal from an interlocutory order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, under section 507 of the Alaska Code, is not limited by the provisions of section 504 of that Code respecting appeals from final judgments or orders of the District Court.

It may be said, however, that the amount involved in the replevin suit was the value of the logs, alleged in plaintiff’s complaint to have been $1,000, that the plaintiff could have sued out its writ of error from the Circuit Court of Appeals to set aside this judgment upon that complaint, and, this being a remedy at law, it cannot prosecute the suit in equity. The amount originally involved in the replevin suit was $1,000, as alleged in the complaint; but the amount involved in the judgment which is now the subject of controversy between the plaintiff and defendants is $477. In determining the appellate jurisdiction, the amount of the judgment from which the appeal or writ of error may be prosecuted is the amount in controversy. New Mexico v. Atchison, Topeka, & Santa Fe, 201 U.S. 41, 26 S.Ct. 386, 50 L.Ed. 651. As a writ of error did not lie from the Circuit Court of Appeals to review this judgment for $477, the only remedy that plaintiff had was a suit in equity.

Coming, now, to the merits of the appeal, the question is: Had the court authority to enter the judgment it did in favor of the defendants? The issues submitted to the court by the pleadings were: (1) Which of the parties to the action was the owner and entitled to the possession of the logs? (2) If the defendants were the owners, and entitled to the possession of the logs, were they entitled to recover damages for their value from the plaintiff for taking them out of the possession of the defendants by their replevin suit, and were they also entitled to recover damages for liability incurred by the defendants for the rent of the sawmill to cut the logs into lumber?

Upon neither of these issues did the court render any judgment. The judgment rendered by the court in favor of the defendants was for meritorious services rendered by the defendants in the recovery of the logs; but this question was not presented to the court by the pleadings for its determination, and was wholly outside of and beyond the issues involved in the case. The judgment was also contrary to the findings of fact made by the court. The court found that the plaintiff was the owner of and in the possession of the logs prior to the time when the logs were taken possession of by the defendants. ' The court also found, as a conclusion of law, that the plaintiff was the owner of the logs. Nevertheless it entered no judgment with respect to the ownership or possession by the plaintiff, but directed, a judgment to be entered in favor of the defendants upon a quantum meruit. It follows that, as the judgment was not based upon the pleadings or issues in the case and the judgment was contrary to the findings of fact, the court had no jurisdiction to make and enter the judgment it did in this action. In Black on Judgments the void character of such a judgment is discussed with that author’s usual clearness in sections 184, 241, and 242. In the last section the author says: “Besides jurisdiction of the person of the defendant and of the general subject-matter of the action, it is necessary to the validity of a judgment that the court should have had jurisdiction of the precise question which its judgment assumes to decide, or of the particular remedy or relief which it assumes to grant. In other words, a judgment which passes upon matters entirely outside the issue raised in the record is so far invalid. ‘Jurisdiction’ may be defined to be the right to adjudicate concerning the subject-matter in the given case. To constitute this there are three essentials: First, the court must have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; and, third, the point decided must be, in substance and effect, within the issue. That a court cannot go out of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by a multitude of authorities. A defect in a judgment arising from the fact that the matter decided was not embraced within the issue has not, it would seem, received much judicial consideration. And yet I cannot doubt that, upon general principles such a defect must avoid a judgment. It is impossible to concede that, because A. and B. are parties to a suit, a court can decide any matter in which they are interested, whether such matter be involved in the pending-litigation or not. Persons by becoming suitors do not place themselves for all purposes under the control of the court, and it is only over those particular interests which they choose to draw in question that a power of judicial decision arises. If, in an ordinary foreclosure case, a man and his wife being parties, the court of chancery should decree a divorce between them, it would require no argument to convince every one that such decree, so far as it attempted to affect the matrimonial relation, was void; and yet the only infirmity in such a decree would be found, upon analysis, to arise from the circumstance that the point decided was not within the substance of the pending litigation. In such a case the court would have acted within the field of its authority and the proper parties would have been present; the single, but fatal, flaw having been the absence from the record of any issue on the point determined. The invalidity of such a decree does not proceed from any mere arbitrary rule, but rests entirely on the ground of common justice. A judgment upon a matter outside of the issue must of necessity be altogether arbitrary and unjust, as it concludes a point upon which the parties have not been heard. And it is upon this very ground that the parties have been heard, or have had the opportunity of a hearing, that the law gives so conclusive an effect to matters adjudicated. And this is the principal reason why judgments become estoppels.” Munday v. Vail, 34 N.J.Law, 418.

In the remainder of the section the author cites numerous cases in support of the doctrine cited in the text.

The action of the court in the present case in denying the motion for an injunction pendente lite was, therefore, a denial of an equitable relief to which the plaintiff was clearly entitled upon the record as presented to the court. The interlocutory decree of the court must therefore be reversed, with directions to issue an injunction in accordance with the prayer of the bill of complaint.

ROSS, Circuit Judge,

dissents from the judgment on the ground that under the statute of Alaska the plaintiff in the replevin action has the right to review by writ of error the judgment there given, as it wholly failed to determine the issues made by the pleadings in the case, for which reason, as also for the reason that the money judgment there given in favor of the defendant is outside of the issues made in the case in which it was rendered, and therefore outside of the matters in controversy there, the amount of that judgment should not be regarded as a test of the right of the plaintiff to have the same reviewed.  