# Bucy v. Nevada Const. Co.

> Court of Appeals for the Ninth Circuit · January 26, 1942 · 125 F.2d 213

URL: https://www.frixlaw.com/law-library/cases/9637059

## Case

- **Full name:** Bucy v. Nevada Const. Co.
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 26, 1942
- **Citations:** 125 F.2d 213; 1942 U.S. App. LEXIS 4345
- **Precedential status:** Published
- **Opinion:** Dissent by Healy
- **Judges:** Healy, Garrecht, Haney
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9637059

## How later opinions describe it (automated extraction)

- stating that, in a case where the district court remanded for lack of subject matter jurisdiction, it is “unlikely that the federal court has power ... to vacate an order of remand after it has been executed by the filing in the state court of a certified copy of the order.”
- noting that while the exception was no longer necessary under Federal Rule of Civil Procedure 46, “of course it is necessary that a man should not spring a trap on the court,” and “the rule requires him to disclose the grounds of his objections fully to the court”

## Opinion text

HEALY, Circuit Judge
(dissenting).
The question presented is whether, having remanded the cause, the district court had power at a later time to vacate its order and resume jurisdiction of the case. I am unable to agree that it had. The point is of such importance, and the reasons advanced by my associates in support of their decision are so far-reaching in their implications, that I feel constrained to set out my views of the matter at considerable length.
In a preliminary way it is to be observed that when the court entered its order of November 27, 1939, “remanding the cause to the state court for lack of jurisdiction”, 1 no further order or action was contemplated or intended by the court to effectuate its purpose. I think the judicial function of the federal court is exhausted and its authority terminated with the entry of the remand order. What thereafter remains to be done, if anything, is not a judicial act but the performance by the clerk of a purely ministerial function. The practice in the clerk’s office in the Idaho district appears to be immediately to forward a certified copy of the order, without charge, to the clerk of the state court. 2 While the record is silent on the subject, it is to be presumed that the clerk followed his usual custom in this instance by dispatching the copy. In any event I believe the point is not material.
As used in the practice, the office of the certified copy is merely informative. 3 The statute does not in terms require it, and its filing with the state court is, I think, in no sense a prerequisite to the revesting of jurisdiction there. If, an hour after a remanding order is entered, the state court were to proceed to judgment in the absence of the copy, upon informal advice of counsel or upon no advice at all, he would indeed be a hardy advocate who would contend that the proceedings so had were without jurisdiction. Cf. Metropolitan Casualty Co. v. Stevens, 312 U.S. 563 , 61 S.Ct. 715 , 85 L.Ed. 1044 .
Rule 60(a) has a purpose foreign to the present situation. As its title indicates, it relates to the correction of “clerical mistakes”. There was here no clerical mistake, oversight, or omission within the intendment of the rule. The remanding order entered by the court was precisely the order the court intended to enter. For reasons to be stated, I think the general power of the court to vacate its orders during the term does not extend to remands. 4
Before turning to the statute a third preliminary matter is to be noticed. My associates, apparently as an alternative to their holding on the disputed point, find in the conduct of appellant “another compelling reason” why he should not prevail. He is held to have acquiesced in the jurisdiction and cannot, therefore, be heard to dispute it. In this respect the holding appears to beg the question. If, as appellant contends, the court lacked power to set aside the remand, then, so far as this case is concerned, “the issue of removability is closed” by the remand; and this court is obliged to assume that the suit was not removable, hence that appellant could not by acquiescence confer jurisdiction. Metropolitan Casualty Co. v. Stevens, supra, 312 U.S. pages 568, 569, 61 S.Ct. 715 , 85 L.Ed. 1044 . Thus we are driven back to the original inquiry, upon the answer to which alone the proper solution of the case depends.
In any event I think there was no acquiescence in the jurisdiction such as would estop appellant from thereafter raising the question. Rule 46 of the Rules of *220 Civil Procedure provides that formal exceptions to rulings or orders of the court are unnecessary, “but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.” (Emphasis supplied).
The record affirmatively discloses that the challenged order was made in the absence of the parties and their counsel. If the language of the rule is taken to mean what it says, the absence of an objection ought not, under the circumstances, be thought to prejudice appellant. Had the order been made in consequence of a petition for rehearing by the removing party, appellant would have had the opportunity to make known to the court his obj ection to the action sought, namely, the lack of jurisdiction in the court to reconsider or set aside its remand; and it would then have been incumbent on appellant to make known his objection if he desired to preserve the point. But here the court made the order of its own motion. In doing so it necessarily ruled on its power so to act, and this without affording appellant an opportunity to be heard thereon. In considering the right of appellant thereafter to have the ruling reviewed it is important to remember that appellant had not invoked the jurisdiction or invited the error complained of; and that he had manifested his unwillingness to try his cause in the federal court by moving to remand. I have found nothing in the discussions which throws light on the portion of the rule which I have italicized, and I believe the provision should be held to obviate the necessity of a subsequent exception or objection, even assuming that the jurisdictional question may be waived.
While the main opinion is not clear, as I read its holding even the traditional exception would not have served to avail appellant. He must, the opinion intimates, “appear specially” if he would question the jurisdiction; and it is to be gathered that should his objection prove unavailing he must, “if he had faith in his position”, turn to the state court. 5 If this part of the opinion was intended to be something more than a series of rhetorical questions, the holding is totally at variance with settled principles applicable in removal cases, as will be apparent upon a reading of the very decision which the court cites as authority. The order in suit, being in its entirety interlocutory, could not have been made the subject of a direct appeal; 6 it was reviewable only on appeal from final judgment. 7 Confronted with the order, appellant would appear to have the options normally open to a party who believes the court is without jurisdiction and whose motion to remand has been denied. 8
The pertinent statute (§ 28 of the Judicial Code, 28 U.S.C.A. § 71 ) provides: “Whenever any cause shall be removed from any State court into any district court of the United States, and the district court *221 shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it .came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the district court so remanding such cause shall be allowed.”
This provision, first enacted in 1887, has from the beginning been “broadly construed * * * as prohibiting review of an order of remand, directly or indirectly, by any proceeding.” Gay v. Ruff, 292 U.S. 25, 29 , 54 S.Ct. 608, 610 , 78 L.Ed. 1099 , 92 A.L.R. 970 . The purpose of the statute has not been better expressed than by the Supreme Court in Ex parte Pennsylvania Co., 1890, 137 U.S. 451 , 11 S.Ct. 141, 142 , 34 L.Ed. 738 , where it was held that even indirect review by mandamus is not available. The court said that “the general object of the act is to contract the jurisdiction of the federal courts”; and that “the use of the words, ‘such remand shall be immediately carried into execution,’ in addition to the prohibition of appeal and writ of error, is strongly indicative of an intent to suppress further prolongation of the controversy by whatever process." 9 And the court’s latest pronouncement on the subject in Metropolitan Casualty Co. v. Stevens, 312 U.S. 563 , 61 S.Ct. 715 , 85 L.Ed. 1044 shows how rigidly the purpose has been adhered to. 10
The district courts have likewise applied the statute to their own reviewing powers, and when their attention has been directed to its summary provisions have declined to reconsider or vacate assertedly erroneous orders of remand. The leading decision on this phase of the subject is Ausbrooks v. Western Union Telegraph Co., D.C., 282 F. 733 , 734 where Judge Sanford held that his order of remand, “having ex propria vigore reinvested the State court with jurisdiction, necessarily terminated the jurisdiction of this court.” The general power of the court to vacate orders at any subsequent day of the term was not thought to extend to the vacation of remand orders whereby the jurisdiction of the court had been completely exercised. Apparently in that case a copy of the remanding order had not been filed in the state court nor subsequent proceedings had therein, but the opinion was expressed that the remand was nonetheless conclusive. 11 The Ausbrooks decision has been followed by other district courts, see particularly Leslie v. Floyd Gas Co., D.C.Ky., 11 F.Supp. 401 ; Garrison v. Atlantic Life Ins. Co., D.C.S.C., 18 F.Supp. 469 , and it is significant that no considered case from a district court holding the contrary has been found in the books. See ' note to Moulding-Brownell Corp. v. Sullivan, 114 A.L.R. 1471, 1481 . The upshot of these decisions is that the statute renders the remand order immediately effective upon its entry; and that the order ipso facto divests the court of authority over the case and revests jurisdiction of it in the court from whence it came. The result is clearly in harmony both with letter and the purpose of the statute. Leslie v. Floyd Gas Co., supra, 11 F.Supp. page 402.
At a time like the present when the federal courts are overburdened with cases of national import and when the right to remove causes on grounds of diversity has become of more than doubtful utility, Erie R. R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 , 114 A.L.R. 1487 , it seems strange that this court should cavalierly turn its back on so much thoughtful precedent and lay down rules subversive of the statute, merely because it feels that in this particular case “justice and good conscience” require that a “manifest error” be corrected. The certainty that errors would occur in the remand of causes, many of them perhaps flagrant and obvious, was a matter of indifference to Congress when it enacted the statute, nor did Congress con *222 cern itself with their correction. The concern it manifested was that the remand order, whether wrong or right, should summarily end the matter.
The principles now announced extend beyond the exigencies of the present case. In this circuit an important question has been put at large, leaving it to future litigation to fix the limits of time and circumstance beyond which remands may be said at last to have become final. The holding invites petitions for rehearing of remand orders, with the injurious delays incident thereto. It creates new possibilities of conflict in a field where judges of both the state and federal systems have labored assiduously to eliminate conflict. And it introduces similar elements of doubt and confusion elsewhere in the field of review.
I think the judgment should be reversed with directions to reinstate the order of remand.
The order is so characterized by Judge Cavanah in his vacating order.
There appears to be no court rule on the subject; nor does there appear to be any practice in that district of furnishing a transcript of the proceedings in the federal court. In the absence of a rule, I have assumed that the administrative practice is a matter of which this court may inform itself.’
The last sentence in the quotation from 23 R.C.L. § 195, quoted in the main opinion, is predicated on In re Sherman, Jan., 1888, 124 U.S. 364 , 8 S.Ct. 505 , 31 L.Ed. 423 . The ease is not decisive of the proposition stated.
Rule 82 provides that “these rules shall not be construed to extend * * * the jurisdiction of the district courts."
The state court had made the usual order allowing the removal. Appellant’s ability to proceed there was not entirely a matter of his own choice. That court, as a matter of comity if for no other reason, Metropolitan Casualty Co. v. Stevens, supra, 312 U.S. page 569, 61 S. Ct. 715 , 85 L.Ed. 1044 , might well have declined to proceed at that juncture; and in any event if appellant had attempted to proceed there the federal court could have enjoined him from so doing. Toucey v. New York Life Ins. Co., 62 S. Ct. 139 , 86 L.Ed. —.
Bender v. Pennsylvania Co., 148 U.S. 502 , 13 S.Ct. 640 , 37 L.Ed. 537 .
Gully v. First National Bank, 299 U. S. 109 , 57 S.Ct. 96 , 81 L.Ed. 70 ; Geer v. Mathieson Alkali Works, 190 U.S. 428 , 23 S.Ct. 807 , 47 L.Ed. 1122 ; Mansfield, C. & Lake Mich. Ry. Co., 111 U. S. 379 , 4 S.Ct. 510 , 28 L.Ed. 462 . Cf. Cray, McFawn & Co. v. Hegarty, Conroy & Co., 2 Cir., 85 F.2d 516 .
He might, for example, have suffered his ease to be dismissed by the federal court for want of prosecution and then have raised the question by appealing from the final judgment, compare Ruff v. Gay, 5 Cir., 67 F.2d 684 , affirmed 292 U.S., 25 , 54 S.Ct. 608 , 78 L.Ed. 1099 , 92 A.L.R. 970 . Or he might, as he did here, proceed to the trial of his case' in the federal court, taking whatever steps by pleading or by amendment thereto as might seem to him necessary to the proper presentation of his cause on the merits, and then, if the decision went against him, seek review of his point by appeal from the final judgment. Pursuit of the latter course would not of itself constitute a waiver of any of his rights, Metropolitan Casualty Co. v. Stevens, supra.
The binding effect of a remand order cannot be defeated by the filing of a second petition for removal on the same ground as that presented in the first. St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212 , 2 S.Ct. 498 , 27 L.Ed. 703 ; McLaughlin Bros. v. Hallowell, 228 U.S. 278 , 33 S.Ct. 465 , 57 L.Ed. 835 .
There have been but few cases in which the peremptory nature of the statute has been disregarded, notably in Travelers’ Protective Ass’n v. Smith, 4 Cir., 71 F.2d 511 and Bankers Securities Corp. v. Insurance Equities Corp., 3 Cir., 85 F.2d 856 . 108 A.L.R. 960 . The holding of the latter case has been criticized, see Moulding-Brownell Corp. v. Sullivan, 7 Cir., 92 F.2d 646 , 114 A.L. R. 1471; Borden Co. v. Zumwalt, 9 Cir., 120 F.2d 69 . Consult case note to Borden Co. v. Zumwalt in Harvard Law Review for December, 1941, Vol. 55, p. 290.
The petition for rehearing was filed eight days after entry of the remand order. In the later case of Leslie v. Floyd Gas Co. it was filed five days after remand.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637059. Public record. Not legal advice.