
    138 F. 333
    COPPER RIVER MIN. CO. v. McCLELLAN et al.
    No. 1,091.
    Circuit Court of Appeals, Ninth Circuit.
    May 15, 1905.
    
      W. B. Heyburn, Andrew F. Burleigh, and Volney T. Hoggatt, for appellant.
    R. T. Harding and George C. Sargent, for appellees.
    Frank D. Arthur and John A. Carson, for all appellees except Millard.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The appellees moved to dismiss the appeal on several grounds, the first of which is that the assignment of error and the petition for appeal had not been filed in the court below before the same were presented to a judge of this court for the allowance of the appeal. It is true that rule 11 of this court (31 C.C.A. cxlvi, 90 F. cxlvi) requires that the plaintiff in error or the appellant shall file with the court below his petition and assignment of error, and that no writ of error or appeal shall be allowed until such assignments of error have been filed. But we think the rule may be said to be sufficiently complied with when the order of allowance, together with the petition and the assignments of error, are filed in the court below. They were all filed in this case on the same date, and that is the date upon which it may be said that the order of allowance took effect.

The second ground of the motion is that the appeal could only be allowed by the judge of the trial court, and that a judge of this court was without jurisdiction to make such an order. The Code of Alaska (31 Stat. 414, c. 51) provides that this court shall have jurisdiction to review by writ of error or appeal the final judgments and orders of the court below, and it further provides: “That all provisions of law now in force regulating the procedure and practice in cases brought by appeal or writ of error to the Supreme Court of the United States or to the United States Circuit Court of Appeals for the Ninth Circuit, except in so far as the same may be inconsistent with any provision of this act, shall regulate the procedure and practice in cases brought to the courts respectively from the District Court for the District of Alaska.”

In Brown v. McConnell, ,124 U.S. 489, 8 S.Ct. 559, 31 L.Ed. 495, the court said: “As appeals from territorial courts are to be taken in the same manner and under the same regulations as from the Circuit Courts (Rev.St. § 703), it follows that citations on such appeals may be signed by a judge or justice of the territorial court or by a justice of this court.”

We find nothing in the provisions of the Alaskan Code which is inconsistent with the application of the rule so announced to the present case. In Re McKenzie, 180 U.S. 536, 21 S.Ct. 468, 45 L.Ed. 657, the Supreme Court recognized the jurisdiction of this court to allow an appeal in a case where the judge of the District Court of Alaska had refused its allowance, and thereby must have affirmed the doctrine of Brown v. McConnell, and held it applicable to appeals from Alaska. It may be added that the order of allowance of the present appeal was made upon information that Judge Wickersham was at that time not within the District of Alaska. It is now asserted by the appellees that such was not the case, and that Judge Wickersham was in Alaska at that date, and remained there until some time in September, when he left for the Eastern States. The fact of the matter is not presented to the court except by these diverse statements of counsel, but, whatever may have been the fact, we think that a member of this court had the power to make the order allowing the appeal.

The third ground of the motion is that the appeal does not bring up any question of real controversy now existing between the parties. It appears from the transcripts filed in support of the motion that at the time when the decree was rendered in the present case there were pending in the court below two other suits, instituted after the present suit was begun, by the appellant herein as complainant against the Alaska Copper Company as defendant, in which suits the appellant sought substantially the same relief as against the Alaska Copper Company that was sought to be obtained in the present suit. The other appellees were not made parties defendant in those two suits. It further appears that after the final decree was'entered in the present case decrees were entered in the two subsequent suits dismissing the respective bills of complaint. No testimony whatever was taken in those suits. They came on to be heard upon a motion of the Alaska Copper Company for a judgment on the pleadings on account of the default of the appellant in failing to plead to the supplemental answer of that company. The appellant, by its counsel, announced in open court that it did not desire to plead to the supplemental answer. The defendant offered in evidence the judgment roll in the present suit. The decree in each case recited “that all the issues * * * have been determined and decided by this court in that certain other cause” (referring to the present suit), and it was ordered that the suits be dismissed. It is contended that by virtue of such decrees dismissing the appellant’s bills in the two subsequent causes, which decrees were rendered after the entry of the final decree in the present case, two valid decrees unappealed from remain of record, substantially adjudicating in favor of the Alaska Copper Company and against the appellant the whole question of the right and title of the appellant to the mines in controversy in this suit. We do not so regard the records in the three cases. The present suit was the one, and the only one, in which the rights of the parties were tried and determined. The decrees in the two subsequent suits were entered as mere matters of form, and were rendered solely by reason of, and depended upon, the adjudication made in the present case. This is the suit in which the rights of the parties litigant were determined, and, if the decree in this case were reversed, nothing would remain upon which the decrees in the other suits could stand as a final adjudication of the rights involved. The motion to dismiss is denied.

It is assigned as error that the trial court denied the appellant’s motion for a continuance of the cause. A continuance is not a matter of right, but it rests in the sound judicial discretion of the trial court, whose ruling thereon is not subject to review in an appellate court unless there has been abuse of discretion. Drexell v. True, 74 F. 12, 20 C.C.A. 265; Deitz v. Lymer, 61 F. 792, 10 C.C.A. 71. The ground of the motion for continuance in this case was the absence of some of the appellant’s witnesses and the absence of two of its associate counsel. The motion for a continuance was made on February 6, 1903. The suit had been commenced on August 11, 1902. Service of process had been made on September 8, 1902, on all the appellees residing in the District of Alaska. They answered on October 8th. All the other defendants in the suit except Abercrombie answered on January 30, 1903. The motion for a continuance was accompanied by the affidavit of George M. Perine. It- was made by him on August 2, 1902, nine days before the suit was commenced. It stated no ground for a continuance. It merely set forth substantially the facts alleged in the bill. The motion, however, specified as grounds of continuance that the defendants McClellan, Hamlin, H. T. Gates, and Benedict had not been served with process, but- had voluntarily answered on January 30, 1903, and that their answer was filed without notice to the appellant that the same would be filed, or that the said defendants would submit themselves to the jurisdiction of the court without service; that said answer cannot reasonably be replied to without first submitting the same to the officers of the appellant in San Francisco; that two of the principal attorneys of the appellant, Hon. W. B. Heyburn and E. L. Campbell, were in Idaho and San Francisco, respectively, and could not be brought to participate in the trial if had at that term of the court, and that said attorneys did not know that McClellan, Hamlin, H. T. Gates, and Benedict had voluntarily answered; that their voluntary appearance had taken the appellant by surprise, and had found it unprepared for trial; that many of the appellant’s material witnesses were without the District of Alaska, and the appellant could not safely go to trial in the absence of George M. Ferine, a material witness. There was no affidavit of the truth of those facts so set forth in the motion. In opposition to the motion for a continuance the appellees filed the affidavit of one John F. Rice, who deposed that Major Abercrombie was the only appellee who had not answered; that the affiant had been chief clerk under Abercrombie in the construction of a military road from Valdez into the interior for three years preceding December, 1901, and that in that month Abercrombie was by the War Department transferred to Vancouver, Wash.; that he had not since returned to Alaska; and that all these facts were common knowledge known to all the residents of Valdez, Alaska. They filed also the affidavit of Stephen Birch, general manager of the Alaska Copper Company, who stated that, acting upon advice of counsel, that company, after the commencement of the suit, had taken depositions of its principal witnesses in New York City, at Seattle, at San Francisco, and at Florence, Ariz., and had secured the personal attendance of witnesses, had brought McClellan from Princeton, Minn., Smith from Phoenix, Ariz., Kain from Portland, Or., Warner from Seattle, Wash., Fitch from San Jose, Cal., and Amy from Stockton, Cal., and had procured the personal attendance of its general counsel, Frank D. Arthur, from New York, and its counsel W. H. Gorham from Seattle, and that in making these preparations for trial, it had expended over $9,000. The appellees filed also the affidavit of Fred M. Brown, their local attorney at Valdez, who stated that Millard, the vice president of the appellant, was in Valdez during the summer and fall of 1902, and had left'for the States about December 7, 1902; that the affiant had, on or about the 1st of December, personally notified Mr. Hubbard, one of appellant’s attorneys at Valdez, that the appellees would insist upon trial of the suit at that term; that Mr. Hubbard had told him that he had notified Mr. Campbell that the appellees would insist on the trial at the first term of the court; that at different times during December, 1902, and January, 1903, Mr. Hubbard had notified affiant that he had done all he could to notify the appellant and its officers and attorneys that the appellees would insist upon a trial as aforesaid; and that the appellees were going to large expense in bringing their witnesses and attorneys to Valdez. The appellant filed the counter affidavit of its attorney O. P. Hubbard, in which he stated that he was not familiar with the records and files of the appellant, the same being kept at its head office in San Francisco; that he believed that the appellant had receipts and vouchers and other instruments in writing to prove the allegations of the complaint; that Perine was a necessary and a material witness, whose personal attendance could not be secured at that term of the court; that Millard was a necessary witness, and had gone out of the District of Alaska. The affidavit made no showing of the testimony that'was expected of Millard further than that he had had conversations with some of the appellees. On February 9, 1903, the court denied the motion. We find in the record no sufficient ground for saying that in so doing the court abused judicial discretion. The affidavits in support of the motion for continuance failed to show diligence in procuring the attendance of the appellant’s witnesses, nor was the absence of appellant’s counsel, under the circumstances, necessarily a ground for a continuance. The appellant was represented by three of its attorneys at Valdez. Mr. Campbell had, according to the showing, been notified at San Francisco in December that the appellees would insist upon trial at the first term of the court. He had the opportunity to telegraph to Mr. Heyburn, in Idaho, at the time when he received his notice. On February 13, 1903, the appellant made a second motion for a continuance. The motion was supported by the affidavit of Volney T. Hoggatt, to which exhibits were attached, consisting of affidavits and copies of affidavits from others. One of the affidavits was that of a physician in Santa Clara, Cal., stating that Perine was a patient under his charge, “suffering from heart trouble, with constitutional disturbances/’ and that it would seriously impair his health and endanger his life to travel to Alaska at that time; but that, if Perine would follow his physician’s treatment, and refrain from undue and unusual excitement, he- might be cured of his illness in four or five months. Another affidavit was that of E. L. Campbell, who admitted that in November he had received notice that the appellees were taking depositions of their witnesses in Arizona, California, Washington, Oregon, and Minnesota; that it would be impossible for him (Campbell) to attend the trial on account of his professional business in France, England, and Mexico; “that the witnesses, by whom plaintiff will be able to establish the facts stated in its complaint, are. widely scattered, and great difficulty has been experienced in locating such witnesses; that the plaintiff .had used the utmost diligence during the months of December and January to obtain knowledge of the present residence of such witnesses, and has been unable to procure the depositions or attendance of some of said witnesses up to the present time.” Another affidavit was that of Hon. W. H. Heyburn, in which he stated that it would be impossible for him to attend upon the trial during February or March, 1903, for the reason that on March 4th he was compelled to be in Washington as United States Senator from Idaho, and that in February he would be compelled to attend a term of this court in San Francisco. The appellant filed also the affidavit of James McCarthy, one of its stockholders. He deposed that he had spent Christmas in San Francisco with Perine, and that Perine had told him that the cause would probably be tried in February or March, 1903, and had asked him to ascertain the whereabouts of certain witnesses. The appellees filed counter affidavits, several of which it is not necessary now to review. One was that of George C. Sargent, an attorney of San Francisco, who stated that on January 22, 1903, he had called at Perine’s office in San Francisco, and was informed that Perine was engaged in his private office; that two days later he had conversed over the telephone with Perine on business. There were other affidavits tending to show that Perine was well on January 26th and 27th, and was traveling from place to place in Southern California on business. Upon the second application for a continuance, as upon the first, there was absence of showing of diligence, and we are unable to discover that there was abuse of discretion in the action of the court in denying the motion.

But if, indeed, the appellant was placed at a disadvantage on account of surprise, and the absence of its material witnesses, its rights, we think, were fully conserved by the order of the court made on the stipulation of the parties to refer the cause to a referee to take the testimony. The stipulation was that the cause be referred to a referee to take testimony and report the same to the court under an order of the court, “with such restrictions and limitations as the court in said order may direct.” The court, on February 16, 1903, made an order requiring that the testimony be taken and filed on or before September 2, 1903. A large amount of testimony was taken, and it is embodied in the very voluminous record which is before us. Testimony was taken before the referee at Valdez beginning-on February 19, 1903, and continuing until March 11, 1903. Depositions were taken in San Francisco, in Minneapolis, in New York, and in the Philippine Islands. On October 13, 1903, the appellees moved the court to fix a date for the final hearing. The appellant then applied to the court for leave to introduce further testimony. The court required that the application be submitted in writing, which was done. In support of the application the appellant filed the affidavit of Volney T. Hoggatt, and the appellees filed affidavits in opposition thereto. The case was then called for argument. The appellant declared that it had not closed its testimony; that it did not rest its case. The appellees claimed that the appellant had rested its case upon the testimony taken under the stipulation and the order of the court, and that the taking of its testimony had closed on July 11, 1903, under that order. The court ruled in accordance with the appellees’ contention, and denied the application of the appellant to introduce additional oral testimony, and proceeded with the final hearing.

It is assigned as error that the court compelled the appellant to stipulate to take depositions on open commissions, and it is contended that the stipulation was not voluntary, but was made under duress. This contention is not sustained by the record. The bill of exceptions shows that, after the motion for a continuance had been overruled, the court stated that, unless the appellant agreed to a reference, the case would be set down for immediate trial, and that the appellant was given two days in which to consider which course it would pursue. It chose to agree to the order of reference. There was no duress in this. Having failed to satisfy the court with the merit of its motion for a continuance, it was permitted to exercise its option-between proceeding to trial at that term or consenting to take the testimony as suggested by the court. It exercised its own free choice in the matter. Having taken the benefit of the order of the court and submitted its testimony thereunder, it is in no attitude to assert that the court erred in the premises.

It is urged that the order of reference was illegal, for the reason that it did not require that the witnesses who were produced before the referee should read over and subscribe their testimony. There is no provision in the Alaska Code requiring that witnesses who are examined before a referee on such an order shall sign their testimony. Carter’s Code of Alaska, p. 293, § 724, and the statutes of Oregon in force in Alaska before the Code, expressly permitted such an order of reference (section 827, B. & C.Comp.Or.). But if there was error of the court in omitting to insert in the order a requirement of that nature, the appellant should thereafter have objected to the introduction of the evidence. As it was, the appellant, although it objected to the form of the order, took its testimony thereunder, and, so far as the record shows, made ño further objection on the ground of the alleged defect of the order. If insufficient time to take all the evidence was allowed by the order of the court, it was the duty of the appellant to move for further time before the expiration of the time fixed in the order. It made no such application until more than two months after the expiration of the time.

It is assigned as error that the court, upon the evidence in the case, found in favor of the appellees on the merits of the controversy, and dismissed the bill. After a careful consideration of the evidence which is before us, and which we find it unnecessary to review at length, we think that the conclusion which was reached by the trial court was sustained by the very decided weight of the testimony.

The decree of the District Court is affirmed.

ROSS, Circuit Judge

(dissenting).

I am unable to agree to the judgment in this case. It appears from the record that the court below refused to hear the testimony óf certain witnesses produced by the complainant on the trial, for the reason that the time fixed by the court for the taking of the evidence in the case in its order of reference had expired. That order of reference, it appears from the record, was based upon a so-called stipulation of the parties, which, in my judgment, cannot be properly regarded as a voluntary one. It appears that the cause only came to issue on the 9th day of February, 1903. It involved controverted questions of fact upon which, as the record shows, a large amount of testimony was taken; the record comprising eight large volumes of printed matter. It seems to me that each party to such a suit is legally entitled to a reasonable time after issue joined within which to prepare for trial. Yet the record contains this bill of exceptions: “On February 14, 1903 [only five days after the case had come to issue], this cause coming on for hearing after application [for] continuance had been overruled, over objections and exceptions of plaintiff the court announced in open court that the case would be referred for the purpose of taking the testimony, and attorneys for plaintiff objected to such reference; whereupon the court stated that, if plaintiff did not agree to such reference, that the case would be set down for immediate trial; and the hearing was then continued till the 16th of February, at 10 o’clock a. m., at which time the attorneys for plaintiff signed an agreement to refer the case, for the reason they were compelled so to do or at once go to trial. The above and foregoing bill of exceptions is allowed the 16th day of February, 1903. James Wickersham, District Judge.”

It was upon that so-called stipulation that the order of reference was based, which was held by the court below to preclude the complainant from introducing testimony of witnesses that it produced in court at the time of trial. I am unable to regard the so-called stipulation as a voluntary one, or to give my sanction to such proceedings. I therefore respectfully dissent from the judgment given here.  