Harold Yanow, Appellant, v. Weyerhaeuser Steamship Company, a Corporation, Appellee, 274 F.2d 274 (9th Cir. 1959)

After a division of this court had heard this case and decided it upon the merits, it reversed the judgment of the district court; and after petition for rehearing filed by appellee had been rejected and its petition to the Supreme Court for certiorari had been denied, the appellee filed the present motions to recall mandate, to vacate judgment, and to dismiss the appeal. The same panel heard these motions and denied them. Upon a petition for rehearing of the motions it granted that petition, and on the recommendation of the majority of the judges of that division, the motions have been reheard by the court sitting en banc.¹ 

The facts upon which the motions are predicated are as follows: The jury verdict in favor of defendant Weyerhaeuser was returned and filed October 25, 1956; judgment on that verdict, signed by the district judge, and bearing date October 25, 1956, was filed November 2, 1956. On November 5, 1956, after service of a copy thereof upon opposing counsel, counsel for Yanow, the plaintiff, who is the present appellant, filed in the court below a "motion for extension of time within which to file a motion for new trial." This was supported by an affidavit of plaintiff's counsel, and on the same day the court made an order that the time within which plaintiff might file his motion for a new trial was extended to and including November 20, 1956. A copy of the motion (not including proof of service,) of the supporting affidavit, and of the order granting the extension of time, are set forth in the margin.² 

On November 20, 1956, the plaintiff Yanow served and filed a formal motion for new trial specifying and setting forth eight grounds for his motion. On December 5, 1956, a formal order denying a new trial was filed and on December 19, 1956, plaintiff served and filed his notice of appeal from the judgment and verdict for the defendant.

Appellee asserts that its motions now before us must be granted for the reason that the appeal was not taken within the time allowed by the Federal Rules of Civil Procedure. It calls attention to the provision of Rule 73(a), 28 U.S.C.A. — "* * * the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from," and notes that the judgment was dated October 25, 1956, marked filed November 2, 1956, while the notice of appeal was not filed until December 19, 1956. Appellee says that while the same rule provides that "The running of the time for appeal is terminated by timely motion made pursuant to any of the rules hereinafter enumerated," (which includes a motion for new trial under Rule 59), yet the motion for new trial filed November 20, 1956, was not timely made since Rule 59(b) provides that such a motion "shall be served not later than 10 days after the entry of the judgment", and Rule 6(b) provides that the court "may not extend the time for taking any action under rules * * * 59(b)."

It is appellee's contention that this court never acquired jurisdiction of the appeal and that all subsequent actions, including its judgment reversing the decision of the district court, were null and void.

It is clear that when this court first handed down its decision on November 21, 1957, and again when its amended opinion was filed on February 21, 1958, it necessarily determined that it had jurisdiction. Of course the point presently urged, namely, that the appeal was not taken within time, was not then argued or presented by either party; — the point was not raised until 11 months after the first opinion when the present motions were made on October 16 and October 23, 1958. But as stated in Stoll v. Gottlieb, 305 U.S. 165, 171, 59 S. Ct. 134, 137, 83 L. Ed. 104: "Every court in rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties and the subject matter."³ 

That the appellee had not then raised the question is immaterial for as this court said in Leishman v. Associated Wholesale Electric Co., 9 Cir., 128 F.2d 204, 205: "The question is whether we have jurisdiction of the appeal. Though not raised by the parties, the question is here and has to be decided." Again in Guerin v. Guerin, 239 F.2d 909, 913, we said: "This Court must necessarily give first consideration to this jurisdictional point, whether or not the parties raise it." In short, the question of jurisdiction on appeal was necessarily a question before the court for decision.

Since the question of this court's jurisdiction of the appeal was thus an issue in the case, the reversal of the judgment below was a tacit determination of the court's jurisdiction and a final adjudication of that issue. If this final adjudication was erroneous, it was subject to correction upon review in a higher court, or upon rehearing in this court. But such a judgment, whether erroneous or not, becomes res judicata. Stoll v. Gottlieb, supra.⁴ 

When a district court rendered such a final judgment with respect to its own jurisdiction, relief therefrom is obtainable under Rule 60(b) F.R.Civ.P.⁵  That rule has been made applicable to proceedings in this court by our Rule 8, subd. 1, 28 U.S.C.A., which provides: "The Federal Rules of Civil Procedure, 28 U.S.C.A., whenever applicable, are hereby adopted as part of the rules of this court." It seems plain that the motions now before us must be taken to be motions made pursuant to Rule 60(b) as adopted and made applicable to this court.

When these motions were first presented to the division of the court which originally decided the case, they were denied upon the ground that "such a motion cannot be considered after the term in which the judgment becomes final." The court then relied upon authorities cited in the opinion including O. F. Nelson & Co. v. United States, 9 Cir., 169 F.2d 833.⁶  A rehearing of that order denying the motions was granted. In its petition for that rehearing appellee correctly demonstrated that the rule stated in the Nelson case, supra, to the effect that such motions could not be considered after the term in which the judgment becomes final, was no longer law. § 452, Title 28, U.S.C.A., adopted by the Act of June 25, 1948, provided that: "The continued existence or expiration of a term of court in no way affects the power of the court to do any act or take any proceeding." Plainly the expiration of the term has no bearing upon the power of this court to entertain or to act upon the present motions.

It is to be noted, however, that Rule 60(b) contains an express condition upon which the relief there provided for may be granted as follows: "The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken."

If the judgment with respect to which relief is here sought were one which was truly void in the fullest sense of that term, that is to say, if it were one which was subject to collateral attack, because legally ineffective for any purpose, then it is possible that the "reasonable time" limitation might not apply. Support for that view may be found in 7 Moore's Fed.Practice, § 60.25(4), p. 274, (2nd ed. 1955).⁷ 

But the judgment here under consideration cannot be said to be a void judgment in that sense.

Appellee suggests that the matter now presented is simple in that had the court made proper inquiry concerning the matter at the time of its decision, it would have discovered that it was without jurisdiction of the appeal. Appellee states: "It is obvious that if the court had investigated the subject matter of its own jurisdiction it would have been compelled to dismiss the appeal for lack of jurisdiction." In view of this, says appellee, "everything else which has occurred, was and is a nullity * * * therefore the motions of appellee should be granted."

The problem here cannot be disposed of merely by a holding that action within the time provided by the rules is "jurisdictional." Many cases have held that the appeal time provided by Rules 59(b) and 73(a) is "`mandatory and jurisdictional' and `cannot be extended by * * order of the court.'" Edwards v. Doctors Hospital, 2 Cir., 242 F.2d 888, 891; Howard v. Local 74, etc., 7 Cir., 208 F.2d 930, 932; Safeway Stores v. Coe, 78 U.S. App.D.C. 19, 136 F.2d 771, 774, 148 A.L.R. 782.

The difficulty is that the word "jurisdictional" has more than one meaning. As Judge Learned Hand has observed, "`Jurisdiction' is a treacherous word." Baltimore & O. R. Co. v. United States, D.C.N.D.N.Y., 22 F. Supp. 533, 537. Sometimes whether jurisdiction exists has been confused with the question whether the complaint states a cause of action. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 249, 71 S. Ct. 692, 95 L. Ed. 912. Thus it may properly be said that existence of diversity of citizenship or of the requisite amount in controversy, is a prerequisite to the jurisdiction of a federal court; but it is also clear that if the court in question determines that these requirements are satisfied, and that it has jurisdiction, it is certain that such a determination, even if demonstrably wrong, is not a nullity or a truly void judgment, for it cannot be questioned collaterally.

The distinction between cases where certain facts are strictly jurisdictional in the sense that without them the act of the court is a mere nullity, and those cases in which the facts are only quasi-jurisdictional, is set out in Noble v. Union River Logging R. Co., 147 U.S. 165, 173, 13 S. Ct. 271, 273, 37 L. Ed. 123, as follows: "It is true that, in every proceeding of a judicial nature, there are one or more facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceedings, and without which the act of the court is a mere nullity; such, for example, as the service of process within the state upon the defendant in a commonlaw action." [The court here lists sundry other illustrations of the rule stated, and then proceeds]: "There is, however, another class of facts which are termed `quasi jurisdictional,' which are necessary to be alleged and proved in order to set the machinery of the law in motion, but which, when properly alleged, and established to the satisfaction of the court, cannot be attacked collaterally. With respect to these facts, the finding of the court is as conclusively presumed to be correct as its finding with respect to any other matter in issue between the parties. Examples of these are the allegations and proof of the requisite diversity of citizenship, or the amount in controversy in a federal court, which, when found by such court, cannot be questioned collaterally, * * * the existence and amount of the debt of a petitioning debtor in an involuntary bankruptcy, * * * the fact that there is insufficient personal property to pay the debts of a decedent, when application is made to sell his real estate, * * * the fact that one of the heirs of an estate had reached his majority, when the act provided that the estate should not be sold if all the heirs were minors, * * * and others of a kindred nature, where the want of jurisdiction does not go to the subject-matter or the parties, but to a preliminary fact necessary to be proven to authorize the court to act."

Where the facts upon which jurisdiction depends are quasi jurisdictional in the sense here described, the determination by the court of its jurisdiction is, in the language of the case just cited, conclusive and binding in every collateral proceeding; and it matters not that the court's determination of its own jurisdiction is arrived at in error, even though the error of adjudication is apparent upon the face of the record.⁸ 

We are compelled to inquire whether the timeliness of the appeal is only a quasi jurisdictional requisite, not because we deal here with an attempted collateral attack upon the judgment, — plainly the attack here is a direct one, — but because we deem it essential to determine which of the six subdivisions in Rule 60(b), (footnote 5, supra), we must here apply.

Appellee apparently proceeds upon the theory that subdivision (4), "The judgment is void", is the applicable section here. We are of the opinion that it is not; we think that the lack of timeliness of the appeal resembles a lack of diversity of citizenship in that it is an irregularity in the nature of a quasi jurisdictional requisite.

As stated in American National Bank & Trust Co. of Chicago v. Taussig, 7 Cir., 255 F.2d 765, 769: "Rule 60(b) (4) applies only to void judgments." That was a case in which the jurisdictional question was whether a certain party was a resident of the United States or of an enemy country, Germany. If the latter were true, recovery was barred under the applicable Act. The court awarded a judgment against the Alien Property Custodian, and later the Attorney General moved to vacate the judgment on the ground that the court lacked jurisdiction because the party was in fact a resident of Germany. It was held that the court's judgment finding that it had jurisdiction to award it, was "not void, and the same are res judicata in this case." The court relied upon the statement in Treinies v. Sunshine Mining Co., supra, which we have quoted.⁹ 

We hold therefore that the judgment of this court was not a nullity or void, and hence that appellee's motions are not properly made under subdivision (4) of Rule 60(b); rather, they come within the general language of subdivision (6) referring to "any other reason justifying relief from the operation of the judgment." The significance of this conclusion is that the qualification of the rule to the effect that the motion shall be made within a reasonable time must be satisfied here if the appellee is to prevail.

Recently, in the case of Patapoff v. Vollstedt's Inc., 267 F.2d 863, 866, this court had occasion to consider and apply subdivision (6) of Rule 60(b) holding that under the circumstances of that case the relief prayed for by the moving party should have been granted under that subdivision. In reaching that conclusion this court took pains to make note that the applicant in presenting her motion "made that showing very promptly." There the motion to vacate, under the Rule, was made 10 days after the order against which it was directed.

It is clear that appellee was required to present these motions within a reasonable time. It is equally clear that appellee's delay of almost 11 months after the date of the original decision in this case, (November 21, 1957 to October 16, 1958) was such that it cannot be said that the motion was made within a reasonable time. (This was a substantially longer time than the eight months which we held to be an unreasonable time in Stafford v. Russell, 9 Cir., 220 F.2d 853, 885.) During this interval appellee was calling upon the court to consider the question of jurisdiction of the trial court and its efforts in this direction led to the filing of the amended opinion. It imported a new attorney who noted his appearance here January 22, 1958. It proceeded to petition for certiorari and at all those times counsel must have had occasion to consider, or have in mind, the basis for jurisdiction not only in the court of first instance, but in this court. It had frequent occasion to sift the record. Seemingly it never occurred to the appellee to present the jurisdictional matter now urged until October 16, 1958. These are among the circumstances which we have in view in holding that more than a reasonable time had elapsed.

We have assumed for the purpose of this decision that the record before us showed upon its face that there was not a timely appeal taken to this court. As we have above suggested, this would indicate that the court's determination of its own jurisdiction to entertain the appeal was an erroneous one, but it is insufficient to show that it was a void one.

What we have said, upon the basis of that assumption, sufficiently disposes of this matter. However, there is another, alternative view of the facts and the law of this case which while unnecessary to this decision, nevertheless points to an additional basis for our action here. There is a line of decisions in the federal courts which would indicate that there exists here at least a colorable basis for a holding that the appeal was taken within time.

Under Rule 73(a) "The running of the time for appeal is terminated by a timely motion made pursuant to * * * Rule 59." Where such a motion for new trial has been made, and is denied, the appellant has 30 days after the entry of the order denying a new trial, to give notice of appeal. It is true that the formal motion for new trial here was not made until November 20, 1956. Prior to that time, however, the appellant filed the motion papers set forth in footnote 2, supra. In these he moved the court for an order "extending the time to and including November 20, 1956 within which to file a motion for new trial in the above entitled case." Of course no grounds for the anticipated motion for new trial are stated, although the affidavit in support thereof suggested that counsel expected his motion to be based upon some matter relating to the court's instructions.

However, there is a considerable body of authority indicating that in determining whether an attempted appeal has been accomplished, most informally drawn papers and improperly labeled documents have been held sufficient to accomplish the apparent objective of taking an appeal or of making a motion for a new trial. Thus a petition for rehearing has been held equivalent to a motion for new trial. Fraser v. Doing, 76 U.S. App.D.C. 111, 130 F.2d 617; The Astorian, 9 Cir., 57 F.2d 85, 87; a waiver of notice of appeal by the appellee, when filed, has been held an acceptable substitute for a regular notice of appeal, Crump v. Hill, 5 Cir., 104 F.2d 36;¹⁰  a petition for mandamus was accepted as a sufficient notice of appeal notwithstanding it was filed in the appellate rather than the district court. Jordan v. United States District Court, 98 U.S. App.D.C. 160, 233 F.2d 362, 365;¹¹  an application made in the court of appeals for leave to appeal in forma pauperis has been held "an unequivocal notification of intention to appeal and therefore a `notice of appeal' sufficient to give this court jurisdiction." Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355, 359. See in accord Burdix v. United States, 9 Cir., 231 F.2d 893, 894; Roth v. Bird, 5 Cir., 239 F.2d 257.¹²  Our decision in Mondakota Gas Co. v. Montana-Dakota Utilities Co., 194 F.2d 705, 706, is out of line with those cases, but it was expressly disapproved in Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S. Ct. 577, 99 L. Ed. 678. More in line with the presently prevailing view is Cutting v. Bullerdick, 9 Cir., 178 F.2d 774, 775.¹³ 

It is thus apparent that had this court been presented with a motion to dismiss the appeal on or before the date the case was first argued on its merits, it might well have noted the decisions we have just mentioned, — decisions holding that an attempted appeal may be held to be effective and timely notwithstanding the papers filed are given the wrong names, do not use the word "appeal", are filed in the wrong court, or otherwise fail strictly to conform to the language of the rules. Those cases in principle would support a holding that the motion filed November 5, 1956 could be treated as a motion for a new trial even though it was not labeled as such, and failed to state the grounds for the intended motion. Thus, it might satisfy the requirements of Rule 59(b) relating to service not later than 10 days after the entry of the judgment. Under such a holding that motion would suspend the running of the time for appeal under the provisions of Rule 73(a).

The rationale of the cases relating to informal or irregular appeals is that notwithstanding the papers filed were inaptly worded, or labeled, or even failed to use the word "appeal", or were filed in the wrong court, yet they sufficed to show the party intended to appeal. Similarly, the application for time in which to move for a new trial gave notice of appellant's intent to so move, and was an initiation of efforts to that end.

This motion was served on November 2, 1956. We have noted that the judgment was dated October 25, 1956 and filed November 2, 1956. If we were to assume that the "entry" of the judgment occurred on October 25 and the motion was made on November 5, 1956, the date of its filing, this would be within the 10 days specified, for November 4 was a Sunday.

It is true that the motion for an extension of time within which to file a motion for new trial stated no grounds for which a new trial would be sought; but the fact that this motion, considered as an inartificially drawn motion for new trial was so defective that it could not properly be granted, would not serve to render it non-existent. This court has held that in order to suspend the running of the 30 day appeal period allowed by Rule 73(a) a motion for new trial need not be granted or even be grantable. Thomas Day Co. v. Doble Laboratories, 9 Cir., 41 F.2d 51, 52¹⁴ ; The Astorian, supra.

It is unnecessary here to determine, and we do not purport to decide, whether the court would have been correct in holding, had the matter arisen upon a motion to dismiss the appeal, that the motion for an extension of time within which to move for a new trial should be treated as itself a motion for new trial. All that we here note is that a decision to that effect would at least have had a colorable basis in the decisions.¹⁵ 

If the motion filed November 5, 1956, may properly be treated as itself a motion for new trial, the question arises as to what effect, if any, must be given the formal motion for new trial of November 20, 1956. It may be considered an attempted amendment or enlargement of the earlier motion. Of course, the addition then of new grounds for the motion would be ineffective, but as suggested by our decisions in Thomas Day Co. v. Doble Laboratories, and The Astorian, supra, the motion though still ineffective, was not necessarily non-existent. This means that when the formal motion was denied on December 5, 1956, this was the date of denial from which time the 30 days would be computed, making the December 17, 1956 notice of appeal a timely one.

Our disposition of this case makes it unnecessary to consider whether, on the facts shown, there is here "any * * * reason justifying relief" within the meaning of subdivision (6) of Rule 60(b); that is to say, whether action by us under this "other reason" clause would be an exercise of a power there granted. That clause, in the language of Mr. Justice Black in Klapprott v. United States, 335 U.S. 601, 614, 69 S. Ct. 384, 390, 93 L. Ed. 266, "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice."¹⁶  We do not reach that question here.

If relief were to be granted under Rule 60(b) it must be applied for under the provisions of subdivision (6) of that Rule. Hence, the application must be made within a reasonable time. As we hold that such application was not made within a reasonable time, the motions must be denied.

It is so ordered.

FEE, Circuit Judge, did not participate in the decision of this case.