Smith v. American Asiatic Underwriters, Federal, Inc. ( 1943 )

MATHEWS, Circuit Judge.

Following our decision (9 Cir., 127 F.2d 754), appellant and appellee filed petitions for rehearing, and the Secretary of Commerce filed a motion for leave to file an appearance in this court. A rehearing was granted and has been had, and the Secretary’s motion has been submitted. Appellant and appellee have consented to and joined in the motion, each expressing the view that, if the motion were granted, the controversy between appellee and the Secretary could be determined on this appeal. Recognizing as we do that such a determination should be had if possible, we now consider whether it is possible, or would be possible if the motion were granted.

In our former decision, we left the controversy between appellee and the Secretary undetermined because the Secretary was not a party to this suit or to the judgment therein or to this appeal. The Secretary does not claim to have been a party to this suit. Instead, he states in his motion that he waived joinder of himself as a party, thus emphasizing the fact that he was not a party and never sought to be made a party. It appears from the motion that the Secretary consented that the controversy between appellee and himself be determined in this suit. His consent, however, could not and did not enable the court below — the United States Court for China, hereafter called the China court — to determine that controversy in this suit; for, as said before, he was not a party to this suit.

The Secretary’s motion is for leave to file an appearance “as a party defendant-appellant.” He apparently assumes that we could, by granting his motion, make him a defendant in the suit and an appellant from the judgment therein. The assumption is unwarranted. The Secretary was not made a defendant by appellee or by the China court. No one else could, or can, make him a defendant. And even if he were a defendant, we could not make him an appellant. To become an appellant, he would have to appeal. He has not appealed and could not now do so, the time for appeal having long since expired.¹

Even if the Secretary were an appellant, we could not, on this appeal, determine the controversy between him and appellee, for that controversy has not yet been determined by any court of original jurisdiction. We have no original jurisdiction in cases of this character. Our jurisdiction in such cases is appellate only.² It follows that to grant the Secretary’s motion would be a futile gesture.

We have not been asked to bring the Secretary in as a party appellee by issuing notice to him, as of course we could do if he were a proper party appellee. Miller v. Hatfield, 309 U.S. 1, 60 S.Ct. 374, 84 L.Ed. 535; In re Knox-Powell-Stockton Co., 9 Cir., 97 F.2d 61; Browning v. Boswell, 4 Cir., 209 F. 788. See, also, Stepp v. McAdams, 9 Cir., 88 F.2d 925. In the case at bar, such a request, if made, would be denied; for, not being a party to the suit or to the judgment, the Secretary is not a proper party to the appeal, either as appellee or as appellant.

The Secretary’s motion is not a motion for leave to intervene in this court. If it were, it would be denied upon the authority of United States v. Patterson, 15 How. 10, 12, 14 L.Ed. 578; Thomson Houston Electric Co. v. Western Electric Co., 2 Cir., 158 F. 813; Wenborne-Karpen Dryer Co. v. Cutler Dry Kiln Co., 2 Cir., 292 F. 861; Morin v. Stuart, 5 Cir., 112 F.2d 585. We have not been asked to remand the case with directions to the China court to permit the Secretary to intervene there (cf. Veitia v. Fortuna Estates, 1 Cir., 240 F. 256) and thus obtain a determination of his controversy with appellee. Such a request, if made, would be denied for the following reasons:

The China court is not now functioning. The District Court of the United States for the District of Columbia is functioning. In the District of Columbia appellee (a China Trade Act corporation) has its principal office and an agent upon whom process may be served;³ and the Secretary has his office there. , There he and appellee can, if they choose, obtain a prompt determination of their controversy.⁴ They cannot obtain it in China.

This was not a suit by or against the United States. Since neither the Secretary nor the United States was a party to the suit, neither of them appeared therein, by attorney or otherwise. The district attorney of the China court⁵ appeared for and represented appellant, but he did not appear for or represent the Secretary or the United States. No question as to the attorney’s authority has been raised. Therefore such cases as Western Pacific R. Co. v. United States, 107 U.S. 526, 108 U. S. 510, 2 S.Ct. 802, 27 L.Ed. 806; Mullan v. United States, 118 U.S. 271, 6 S.Ct. 1041, 30 L.Ed. 170; and Causey v. United States, 240 U.S. 399, 36 S.Ct. 365, 60 L.Ed. 711, have no relevancy here.

In the case at bar, two pleadings were filed — appellee’s complaint and appellant’s answer. Each prayed for a declaratory judgment. In this court it has been suggested that appellant’s prayer made this a case of actual controversy within the meaning of § 274d of the Judicial Code, 28 U.S.C.A. § 400. There is no merit in the suggestion. The two prayers (appellee’s and appellant’s) related to a single controversy. That controversy, we have held, and correctly held, was not a controversy between appellee and appellant, but was one between appellee and the Secretary. Appellant’s prayer did not transform that controversy into one between appellee and appellant and hence did not make this a case of actual controversy.

Motion denied, judgment reversed and case remanded for dismissal.

1 The judgment was entered on May 18, 1940. Hence the time for appeal expired on August 18, 1940. See 22 U.S.C.A. § 194; 28 U.S.C.A. § 230.

2 See 22 U.S.C.A. § 194; 28 U.S.C.A. §§ 225(a) (5), 400.

3 See 15 U.S.C.A. §§ 144(b) (2), 160.

4 See 15 U.S.C.A. § 142(d); 28 U.S. C.A. § 53.

5 See 22 U.S.C.A. § 197.