1. Where the district court dismissed a bill on the ground that
the constitutional questions relied on were too unsubstantial to
confer jurisdiction, without passing on defendant's further
objection that the bill sought to enjoin proceedings in a state
court contrary to Jud.Code, § 265, the only appeal allowed by law
was to this Court under Jud.Code, § 238, on the ground that the
sole issues involved were those involving the application or
construction of the Constitution or the jurisdiction of the
district court. P.
262 U. S.
230.
2. The Act of September 14, 1922, c. 305, 42 Stat. 837,
providing that, if a case is taken, by appeal or writ of error, to
the circuit court of appeals, which should have been taken to this
Court, the appeal or writ of error shall not for that reason be
dismissed, but shall be transferred to the proper court and there
be disposed of as if the appeal or writ of error had been properly
taken, was applicable to a case in which the circuit court of
appeals had rendered a final decree of affirmance before the date
of the act, but which remained pending before that court on a
petition for rehearing. P.
262 U. S. 230.
3. When a case from the district court which should have been
brought here directly was taken to the circuit court of appeals,
and then, by appeal from its decision, to this Court, and here
submitted for decision on the merits, by a motion to dismiss or
affirm and accompanying briefs,
held that it was not
necessary to remand it to the circuit court of appeals for transfer
under the Act of September 14, 1922,
supra, but that it
might be treated as though it had been so transferred. P.
262 U. S.
231.
4. The proposition that, in a collateral attack upon the
validity of a judgment of a state court, a federal court can
examine the evidence to see whether a direction by the court to a
jury to find a verdict was justified by the evidence, is frivolous.
P.
262 U. S.
231.
Page 262 U. S. 227
5. The deprivation of a right of trial by jury in a state court
does not deny the parties due process of law under the federal
Constitution. P.
262 U. S.
232.
6. When the state constitution provides that a court shall
consist of four judges and that a majority thereof shall constitute
a quorum, and review by four judges is given, and an opinion is
rendered by three of them, constitution the quorum, the mere fact
that the fourth did not hear the oral argument, but wrote the
opinion on the printed arguments, is, at most, an irregularity
which does not affect the validity of the judgment. P.
262 U. S.
232.
7. Where the state constitution provided for a court in two
divisions, and a case was disposed of by one of those divisions,
and the losing party's motion to transfer the case to the court in
banc, because a federal question was involved and it was therefore
under the state constitution entitled to a hearing by the full
court, was denied, and the propriety of the decision in the state
court was questioned in the federal court on this ground,
held that the question of the right to the transfer was
one of state law upon which the federal courts were bound to accept
the decision of the state court. P.
262 U. S.
232.
8. When the history of the case and the conduct of the appellant
left no doubt that the litigation and successive appeals were
prosecuted solely for delay and the case was dismissed by this
Court for lack of jurisdiction because the grounds of appeal were
frivolous, the appellee was awarded $1,500 as damages for delay,
and costs, as upon an affirmance of the decree of the district
court. Rev.Stats., §§ 1010, 1012. P.
262 U. S.
232.
Appeal to review 282 F. 219 dismissed.
Appeal from a decree of the circuit court of appeals affirming a
decision of the district court which dismissed the bill in a suit
to hold a sheriff as trustee of money paid under an execution
issued on a judgment of a state court, and to enjoin him from
paying it to the judgment creditor, Lyndon, and the latter from
receiving it.
Page 262 U. S. 228
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a motion to dismiss or affirm by the appellees in an
appeal from the decree of the circuit court of appeals of the
Eighth Circuit.
The record discloses the following:
On May 10, 1917, the appellee Lamar Lyndon brought suit in the
Circuit Court of the City of St. Louis, Missouri, against the
appellant, the Wagner Electric Manufacturing Company, to recover
royalties on a patent owned by Lyndon, alleged to be due under a
contract between the parties. A trial before a jury was had in
which evidence was introduced by both sides, and at the close of
all the evidence, the court directed a verdict for the plaintiff,
and judgment followed for $12,029.50. The Wagner Company appealed
from this judgment to the Supreme Court of Missouri, where it was
duly assigned for hearing to Division No. 1 of that court under a
provision of the Constitution of Missouri that the Supreme Court
shall consist of seven judges and shall be divided into two
divisions, one to consist of four judges, known as Division No. 1,
a majority thereof to constitute a quorum, and its judgments as to
causes and matters before it to have the force and effect of law.
On January 21st, the appeal was argued before three of the judges
of Division No. 1, and printed arguments were filed by both
parties. Judgment was subsequently rendered by the four judges, the
opinion being written and filed, with the concurrence of the other
three judges, by Judge Woodson, of the Division. Judge Woodson had
not heard the oral argument. The Wagner Company filed a motion for
rehearing, and a motion to transfer the cause to the court in banc,
which were denied.
The Wagner Company then applied to this Court for a writ of
certiorari to review the judgment of the Missouri
Page 262 U. S. 229
Supreme Court, which was denied in April, 1921.
Wagner v.
Lyndon, 256 U.S. 690. Thereafter, on a mandate from the
Supreme Court of Missouri, the state circuit court issued execution
against the Wagner Company on the judgment. The sheriff made a levy
on the real property of the Wagner Company, which filed a bill in
the United States District Court for the Eastern District of
Missouri, against Lyndon and the sheriff, seeking an injunction
against their proceeding with the execution. Application for a
preliminary injunction on this bill was denied by the district
court. The Wagner Company then paid the judgment and costs,
amounting to $15,015.29, to the sheriff, and at once brought the
present bill in the United States district court against Lyndon and
the sheriff, seeking to hold the sheriff as trustee in his custody
of the fund, and to enjoin him from paying the money to Lyndon, and
Lyndon from receiving it. The jurisdiction was asserted on the
ground that the case was one arising under the Constitution of the
United States. The district court heard the case and dismissed the
bill. The Wagner Company then appealed to the circuit court of
appeals, which affirmed the decree of the district court.
The grounds urged in behalf of the relief sought in the district
court, the circuit court of appeals, and this Court were first that
the action of the circuit court of St. Louis in directing a verdict
for plaintiff without evidence to warrant such action deprived the
defendant, the Wagner Company, of its property without due process
of law and denied it the equal protection of the laws; second, that
the action of Division No. 1 of the Missouri Supreme Court in
hearing the case on appeal with three judges and allowing a fourth,
who did not hear the oral argument, to take part in the decision
and write the opinion, and the refusal of Division No. 1 of the
Supreme Court of Missouri to transfer the cause to be heard by
Page 262 U. S. 230
the Supreme Court in banc, as required by the law of Missouri
when a federal question is involved, deprived the Wagner Company of
its property without due process of law and denied it the equal
protection of the laws.
Defendant Lyndon moved to dismiss the complaint because the
court was without jurisdiction, there being no substantial federal
question, and because the bill sought an injunction to stay
proceedings in a state court contrary to § 265 of the Judicial
Code. The district court dismissed the bill on the first ground. No
other questions were presented to the district court. The only
appeal from its decision allowed by law was therefore to this Court
under § 238, on the ground that the sole issues involved were those
involving the application or construction of the Constitution or
the jurisdiction of the district court.
American
Sugar Refining Co. v. New Orleans, 181 U.
S. 277-281;
Huguley Mfg. Co. v. Galeton Cotton
Mills, 184 U. S. 290,
184 U. S. 295;
Union & Planters' Bank v. Memphis, 189 U. S.
71,
189 U. S. 73;
Vicksburg v. Vicksburg Waterworks Co., 202 U.
S. 453,
202 U. S. 458;
Carolina Glass Co. v. South Carolina, 240 U.
S. 305,
240 U. S. 318;
Raton Water Works Co. v. City of Raton, 249 U.
S. 552,
249 U. S. 553.
Such a case could not be taken to the circuit court of appeals,
and, except for legislation enacted by Congress September 14, 1922,
it would have been the duty of that court to dismiss it for want of
jurisdiction. Except for that legislation, it would now be our duty
to reverse the decree of that court, with direction to dismiss the
appeal.
The Assessors v.
Osborne, 9 Wall. 567,
76 U. S. 575;
Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.
S. 379,
111 U. S.
388-389;
Blacklock v. Small, 127 U. S.
96,
127 U. S. 105;
Union & Planters' Bank v. Memphis, 189 U. S.
71,
189 U. S. 73;
Carolina Glass Co. v. South Carolina, 240 U.
S. 305,
240 U. S. 318;
The Carlo Poma, 255 U. S. 219,
255 U. S.
220-221.
The legislation of September 14, 1922, referred to (42 Stat.
837, c. 305), provides that, if an appeal or writ of error has been
or shall be taken to, or issued out of, any
Page 262 U. S. 231
circuit court of appeals in a case wherein such appeal or writ
of error should have been taken to, or issued out of, the Supreme
Court, such appeal or writ of error shall not for such reason be
dismissed, but shall be transferred to the proper court, where it
shall be disposed of as if the appeal or writ of error had been
properly taken.
The decree of affirmance in the circuit court of appeals was
entered on July 7, 1922, but a petition for rehearing was filed,
and that petition was not denied until September 18, 1922, or four
days after the passage of the foregoing act. Before the decree of
affirmance became finally the act of the circuit court of appeals,
this law came into force, and, however that may be, it is in force
now to govern us in the direction which we, in reversing the decree
of affirmance, should give to that court. That direction should be
to transfer the case to this Court, to which it should have been
brought by direct appeal from the district court, under § 238 of
the Judicial Code.
The case is here on appeal allowed by a judge of the circuit
court of appeals. The case has been submitted to us on the motion
to dismiss or affirm, which is a hearing on the merits. All parties
have filed briefs. Is it necessary for us to go through the idle
form of remanding it to the circuit court of appeals, to enable
that court to transfer it back to us for a second consideration?
Certainly such unnecessary consumption of time and labor is not in
the spirit of the Act of September 14, 1922. Having the case here,
and having heard it on the merits, we think we may properly
consider that done which ought to have been done, treat the case as
here by appeal from the district court, and dispose of it, as we
would do if the circuit court of appeals had formally transferred
it to us.
The only grounds urged by the appellant for a reversal of the
decree dismissing the bill of complaint are frivolous and without
merit. The first involves the proposition that in a collateral
attack upon the validity of a judgment
Page 262 U. S. 232
in a state court, a federal court can examine the evidence to
see whether a direction by the court to a jury to find a verdict
was justified by the evidence. This would be to make such an attack
serve the purpose of a writ of error. More than this, even if it
were held that the direction deprived the defendant of the right of
trial by jury (a holding shown to be erroneous by
Treat
Manufacturing Co. v. Standard Co., 157 U.
S. 674), still the deprivation of a right of trial by
jury in a state court does not deny the parties due process of law
under the federal Constitution (
Walker v. Sauvinet,
92 U. S. 90;
Missouri v. Lewis, 101 U. S. 22,
101 U. S. 31;
Twining v. New Jersey, 211 U. S. 78,
211 U. S.
110-111;
Minneapolis & St. Louis R. Co. v.
Bombolis, 241 U. S. 211,
241 U. S.
217). The second ground is equally unsubstantial. The
machinery for review of the judgments of courts of first instance
is wholly within the control of the state legislature --
Missouri v. Lewis, 101 U. S. 22,
101 U. S. 30 --
and when the review by four judges is given, and an opinion is
rendered by three of them, constituting the quorum, the mere fact
that the fourth did not hear the oral argument, but wrote the
opinion on the printed arguments, is, at most, an irregularity,
which does not in the slightest degree affect the validity of the
judgment. The contention that Wagner was entitled under the
Missouri constitution to have the cause heard before a full court
because a federal question was involved is wholly without merit,
because the question of the right to transfer was a question of
Missouri law, upon which we are bound to accept the decision of the
Missouri courts.
Missouri v. Lewis, 101 U. S.
22.
We are asked by counsel for appellees to impose a penalty on the
appellant for delay. The history of the case and the conduct of the
Wagner Company leave no doubt that the litigation in the federal
jurisdiction and the successive appeals have been prosecuted solely
for delay. Have we power to impose damages in this case?
Page 262 U. S. 233
Section 1010 of the Revised Statutes provides as follows:
"Sec. 1010. Where, upon a writ of error, judgment is affirmed in
the Supreme Court or a Circuit Court, the court shall adjudge to
the respondent in error just damages for his delay, and single or
double costs at its discretion."
Section 1012 has the effect to make § 1010 applicable to appeals
in equity. The second paragraph of the twenty-third Rule of this
Court provides that:
"In all cases where a writ of error shall delay the proceedings
on the judgment of the inferior court and shall appear to have been
sued out for delay, damages at a rate not exceeding 10 percent in
addition to interest shall be awarded upon the amount of the
judgment."
The third paragraph is: "The same rule shall be applied to
decrees for the payment of money in cases in equity unless
otherwise ordered by the court."
An objection to allowing damages in the present case suggesting
itself is that the decree appealed from was not a money judgment.
It is true that this whole litigation in the federal jurisdiction
has been initiated and carried on solely to secure the delay of the
payment of a money judgment in the state court, but that is hardly
within the exact terms of the twenty-third rule. Sections 1010 and
1012, Revised Statutes, are, however, not so restrictive, and they
give this Court power to impose just damages upon the affirmance of
any judgment or decree, for delay.
Gibbs v. Diekma, 131
U.S.Appendix clxxxvi.
The case should be dismissed for lack of jurisdiction, because
the grounds of appeal are frivolous. In a dismissal on this ground,
a penalty may be imposed, just as if upon an affirmance.
Deming
v. Carlisle Packing Co., 226 U. S. 102,
226 U. S.
109.
We think that damages of $1,500 for delay are not excessive in
this case. We therefore direct the dismissal
Page 262 U. S. 234
of the appeal, with damages of $1,500 and the taxation of costs
as upon an affirmance of the decree of the district court.