Opinion · Supreme Court of the United States
Ex Parte Simons
247 U.S. 231
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1918-06-03
- Topic
- general
How later courts describe this case
- concluding that extraordinary relief was warranted to correct a legal error that, under the circumstances, the aggrieved party should not have had to wait until the final judgment was entered to correct
- concluding that extraordinary writ relief was warranted because a legal error affected the course of the litigation and the party aggrieved should not have to wait until the final judgment was entered to correct the error
- finding that a breach of a contract to bequeath a sum certain should give rise to a claim for damages in the amount of the sum certain
- granting a petition for mandamus only because the district court’s order denying a jury trial “was wrong and deprived the plaintiff of her right to a trial by jury”
- "[T]he order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order that should be dealt with now, before the plaintiff is put to the difficulties and the Courts to the inconvenience" of appeal and subsequent retrial.
Citator
UpLaw has not yet analyzed Ex Parte Simons. The absence of a flag is not a finding that it is good law.
- Cited by
- 94 opinions
Headnotes
- Contracts Law — Contracts to Make a Will — Action at Law An alleged contract to make a provision by will must be approached with great caution in the matter of proof, but if proved it is valid so far as no statute intervenes, and a contract to bequeath a certain sum gives rise to an action for damages if broken, just as certainly as a contract to pay the same sum during the promisor's life or at the moment of death; the mere fact that an account may be required to ascertain a share of a residue, or that land is included in a promise to leave all the testator's property, does not establish an arbitrary departure from the common law in cases where a definite sum is promised. 247 U.S. at 233–34
- Federal Courts & Jurisdiction — Federal Jurisdiction — Right to Trial by Jury An order transferring a cause of action from the law side of a federal district court to the equity side, on the ground that the claim cannot be maintained at law, deprives the plaintiff of the right to a trial by jury when the claim is in fact cognizable at common law; such an order should be dealt with immediately, before the plaintiff is put to the difficulties and the courts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake. 247 U.S. at 234
- Remedies — Mandamus — Extraordinary Writs Where a district court, by ordering a cause of action transferred from its law docket to its equity docket, may be regarded as having repudiated jurisdiction of that count, mandamus may be adopted to require the district court to produce the cause and to give the plaintiff her right to a trial at common law; the particular form of the extraordinary remedy is immaterial. 247 U.S. at 234
EX PARTE SIMONS,247 U.S. 231(1918)
38 S.Ct. 497
EX PARTE SIMONS, PETITIONER.
PETITION FOR WRIT OF MANDAMUS.
No. 26, Original.
Argued December 10, 1917.
Rule absolute June 3, 1918.
THE case is stated in the opinion.
Whenever a constitutional right has been denied, or a judge has acted clearly beyond his jurisdiction, and there is no immediate remedy by a writ of error or appeal,Page 232mandamus will issue to correct an error which if left uncorrected will cause confusion and complications so great that serious inconvenience to the courts, and to the litigants, will result.Virginiav.Rives,100 U.S. 313,323,329;Virginiav.Paul,148 U.S. 107;Kentuckyv.Powers,201 U.S. 1;Ex parte MetropolitanWater Co.,220 U.S. 539,540,546;Brownv.Circuit Judge ofKalamazoo County,75 Mich. 274.
It is well settled that mandamus is the proper remedy to prevent the enforcement of an order for a change of venue made by a court having exclusive jurisdiction to hear and determine the proceeding, and with no power to send away the case for trial elsewhere; and that an appeal from the final judgment rendered by the court to which the venue is changed does not afford an adequate remedy.Washington ex rel. Wyman, Partridge Co. v.Spokane County,40 Wn. 443;Ex parte Cox,10 Mo. 742;State ex rel. Harrisv.Laughlin,75 Mo. 358;State exrel. Schonhoffv.O'Bryan,102 Mo. 254
The effect of this order is to grant a perpetual stay of proceedings to enforce the first cause of action at common law and to enjoin the further prosecution thereof at common law. It is well settled that mandamus will issue to compel a court to proceed in a suit which it has improperly stayed.Livingstonv.Dorgenois, 7 Cranch, 577;Barber Asphalt Pav. Co. v.Morris, 132 F. 945;McClellanv.Carland,217 U.S. 268.
It will also issue to compel a court to proceed to judgment.Life Fire Ins. Co. v.Wilson, 8 Pet. 291;Life Fire Ins.Co. v.Adams, 9 Pet. 571;Ex parte Equitable Trust Co., 231 F. 571, 585, 594;In re Watts, 214 F. 80; to compel a court to enforce its judgment,Ex parte United States,242 U.S. 27; to compel a judge to permit documents on file in the clerk's office under seal to be produced, opened and put in evidence,Ex parte Uppercu,239 U.S. 435; to compel a court to overrule anPage 233objection to a master's summons which required the defendant to render a sworn statement of an account in accordance with Equity Rule 79,In re Beckwith, 203 F. 45; 201 F. 518; to set aside an order of a District Court which modified a decree rendered at a previous term, although no appeal or writ of error was then pending or had been previously issued or taken,ReDennett, 215 F. 673; see alsoNew Liverpool Salt Co. v.Wellborn, 160 F. 923; to set aside an order disbarring an attorney which had been rendered without jurisdiction or after a proceeding in which the court below had acted with flagrant impropriety.Ex parte Bradley, 7 Wall. 364;Ex parteRobinson, 19 Wall. 506. See alsoEx parte Wisner,203 U.S. 449;In re Winn,213 U.S. 458.
If mandamus will not lie, a writ of prohibition should be granted.United Statesv.Mayer,235 U.S. 55;Ex parteIndiana Transportation Co.,244 U.S. 456;Ex parte EquitableTrust Co., 231 F. 571, 594;Lehmanv.Gumbel,236 U.S. 448.
If neither of the foregoing writs can be obtained, the petitioner has the right to a writ of certiorari — the original writ issuable at common law which under its supervisory jurisdiction is vested in this court by § 262, Jud. Code, formerly Rev. Stats., § 716.United Statesv.Beatty,232 U.S. 463,467.
A District Court of the United States, when sitting in equity and when sitting at common law, exercises as independent a jurisdiction and in the contemplation of the law constitutes two distinct courts just as much as when it is a court of admiralty and a court of bankruptcy. Jud. Code, § 24.
The petitioner has no less right to one of the extraordinary writs than if she had sued upon a single cause of action, and that had been sent from the common-law court to the court of equity. It is settled that when one of two separate and different causes of action joined together in aPage 234single pleading has been dismissed, such dismissal may be reviewed without awaiting the termination of the issues raised upon the other cause of action.Scrivenv.North, 134 F. 366;Historical Pub. Co. v.Jones Bros. Pub. Co., 231 F. 784;Miocene Ditch Co. v.Moore, 150 F. 483, 493;Hillv.Chicago Evanston R.R. Co.,140 U.S. 52.
The District Court had no power to make the order. No statutory provision nor any equity or common-law rule gives such authority, although under Equity Rule 22 a motion may be made to send a cause from the equity to the common-law calendar. The object of this rule is to protect the constitutional right. No constitutional right is infringed by the trial of a case before a jury which might have been tried in equity. Section 274a, Jud. Code, merely authorizes amendments; it does not authorize a transfer in any case,Waldov.Wilson, 231 F. 654; or a severance; and it was clearly not its intention to warrant a transfer upon compulsion against the wish of the plaintiff. If the plaintiff has selected a wrong side of the court upon which to proceed, the penalty upon him is not to compel him to go to the other side which he does not wish to enter, but to dismiss his suit at the appropriate time in the cause. Moreover, the statute does not purport to justify a transfer of part of a suit.
The Constitution forbids such a transfer of part and of the whole of a cause of action from law to equity, especially when the plaintiff claims the right to a trial by jury.
The first as well as the second cause of action was cognizable at common law. [Citing many cases.]
This is not a question which is to be decided according to the state law.Lindsayv.First National Bank,156 U.S. 485,593;Whiteheadv.Shattuck,138 U.S. 146,151;Wehrmanv.Conklin,155 U.S. 314,325.
The same rule has been enforced in the State of New York.Page 235
By the law of New York every right that is cognizable by the courts is a right at common law, including those which by the former practice could be enforced only by a court of equity.Mr. Edgar T. Brackett, with whomMr. Clarke M. Rosecrantzwas on the brief, for respondents:
The order can clearly be reviewed on writ of error after final judgment in the common-law action. Very likely it has become a part of the record in equity; but it also remains a part of the record in the law action, no less so than would an order dismissing the first count, on demurrer or motion. It puts the plaintiff, on the first count, out of court in her action at law. It was entered by the court sitting as a court of law on a motion made by the defendants in the action at law. There is nothing in the situation of petitioner which entitles her to a speedier review here than there would be if Jud. Code, § 274a, had never been enacted.
She may waive her objection to the order if she amends and proceeds under it, but may elect to abide by her declaration. The law was not made to enable her to try her case both at law and in equity.
The petitioner is possibly entitled to an immediate review of the action of the trial court on writ of error from the Circuit Court of Appeals.
Under Jud. Code, § 274a, the court had the power to transfer the first cause of action from the law to the equity side. It is true the section says nothing about transfer. But it is not an ordinary statute of amendments. Its object is not to allow a pleading at law to be amended as such — a right already existing, — but to protect the plaintiff where he could not amend to state a good cause of action at law, against being put out of court altogether. The court, therefore, shall order that he make the necessary amendments to change his declaration at law into aPage 236bill in equity, andvice versa. It follows that an order of transfer from the law to the equity side, or from the equity to the law side, as the case may be, is not only proper but necessary, to get the case instated on the side of the court where it will have to be tried. The order in effect dismisses the cause of action wrongly sued upon at law, and, at the same time, for the plaintiff's benefit, transfers it so that he may proceed on the right side of the court if he sees fit. The section authorizes a severance. It is remedial and should be liberally construed.
So far as petitioner's right at law is concerned, her constitutional right to trial by jury is no more and no less involved than is the right of any other plaintiff to whose declaration at law a general demurrer has been sustained. If the demurrer was improperly sustained, the petitioner will, after reversal and remandment, obtain her jury trial.
Petitioner is not entitled to the writ of mandamus. Under § 274a the subject-matter of which the court is given jurisdiction is precisely the determination of the question whether or not a suit has been instituted on the right side of the court. If a judge decides this question wrongly he is merely committing error, and not exceeding his jurisdiction. His ruling can be reviewed by writ of error. This brings the case squarely within the usual rule that the writ of mandamus cannot be used to serve the purpose of an appeal.
The situation here cannot be distinguished from the attempt to review by mandamus the refusal to remand to a state court, in a case where the question of removability can be determined as a question of law on the record. This was the question elaborately discussed and finally set at rest inEx parte Harding,219 U.S. 363. The jurisdiction of the court to determine the question of law whether or not the first count of plaintiff's declarationPage 237stated a common-law cause of action is plain. The right of plaintiff to review on writ of error the court's determination of that question is plain. Even if it be that, technically, the court had no jurisdiction of the subject-matter of its order, since the section (274a) empowered it only to authorize or direct amendments in pleadings and not to order the transfer of a case, it by no means follows that mandamus will lie to correct this "jurisdictional" trespass. It is of no consequence to petitioner whether or not the first count of her declaration be "transferred" to the equity side before or after she elects to amend and proceed on that side. She is deprived of no substantial right by the order considered as an order transferring a part of her suit, as distinguished from an order merely allowing her to amend. If she had been able to amend the first count of her declaration so as to make it a good count at law, she would doubtless have been allowed to do so had she made the request. No such request was made. And even if it had been made and had been refused, she would have had precisely the same remedy that she now has, namely, by writ of error after final judgment. The important and only vital question to petitioner is whether or not the first count of her declaration states a common-law cause of action. If respondent decided that question wrongly, he was merely deciding wrongly the very question which § 274a obliges him to decide, and, as already shown, his conduct in this regard can certainly not be reviewed by mandamus.
The right to prohibition or certiorari depends on precisely the same considerations determining the right to mandamus.
An oral contract to make a will is not in New York a valid contract on which an action at law may be maintained, though in certain cases relief may be had in equity. [Citations.]
If the New York law is as above stated, it is a rulePage 238of substantive law and not a rule of procedure, and the federal courts will therefore apply it.Scudderv.Union NationalBank,91 U.S. 406;Pritchardv.Norton,106 U.S. 124. The cases cited by petitioner are all cases relating to remedies and not to substantive rights.
We do not find sufficient ground for the opinion of the judge in the New York decisions. No doubt alleged contracts to make a provision by will must be approached with great caution in the matter of proof, but there is no doubt that if proved they are valid so far as no statute intervenes. So much seems to be assumed by the order of the judge, and is the law we believe of New York as well as of other States and England. But if valid we see no reason why a contract to bequeath a certain sum should not give rise to an action for damages if broken, as certainly as a contract to pay the same sum in the contractor's life, or at the moment of the contractor's death.Parkerv.Coburn, 10 Allen, 82. In cases of contracts to leave all the testator's property, including land, or a proportion of a residue requiring an account to ascertain it, equitable remedies have been thought proper, and in some such cases it has been assumed for the purposes of argument that an action would not lie at common law. SeeWinnev.Winne,166 N.Y. 263.Phalenv.United States Trust Co.,186 N.Y. 178. But we have seen nothing that suggests an arbitrary departure by the Courts of New York from the common law in cases like the present. SeeFarmers' Loan Trust Co. v.Mortimer,219 N.Y. 290,295.DeCiccov.Schweizer,221 N.Y. 431.Silvester's Case, Popham, 148, 2 Roll. R. 104.Fentonv.Emblers, 3 Burr. 1279.Van Houtenv.Van Houten,89 N.J.L. 301.Krellv.Codman,154 Mass. 454.
If we are right, the order was wrong and deprived the plaintiff of her right to a trial by jury. It is an order that should be dealt with now, before the plaintiff is put to the difficulties and the Courts to the inconvenience that would be raised by a severance that ultimately must be held to have been required under a mistake. It does notPage 240matter very much in what form an extraordinary remedy is afforded in this case. But as the order may be regarded as having repudiated jurisdiction of the first count, mandamus may be adopted to require the District Court to produce and to give the plaintiff her right to a trial at common law. SeeBrownv.Circuit Judge of Kalamazoo County,75 Mich. 274.Rule absolute.