Kasishke v. Baker

Decision Date02 August 1944
Docket NumberNo. 2944.,2944.
Citation144 F.2d 384
PartiesKASISHKE et al. v. BAKER.
CourtU.S. Court of Appeals — Tenth Circuit

R. D. Hudson, William M. Taylor, Paul Pinson, I. J. Underwood and M. C. Rodolf, all of Tulsa, Okl., for appellants.

M. A. Breckinridge, of Tulsa, Okl., for appellee.

Before PHILLIPS and MURRAH, Circuit Judges, and RICE, District Judge.

RICE, District Judge.

The appellee, plaintiff below, filed his suit against the appellants, defendants below, alleging that in 1932 he entered into an oral agreement with the defendant Kasishke, whereby they would enter into the oil business — Kasishke to furnish the money and plaintiff to devote his time and attention thereto in the capacity of general manager. It is alleged that the two corporate defendants are wholly owned by Kasishke and his family and completely under his domination and control. According to the alleged agreement plaintiff was to receive a small salary and in addition was to have a 10% interest in the properties acquired, it being contemplated that plaintiff's interest would not be realized upon until the properties had been substantially drilled and fully paid out. In the event the relation should terminate, plaintiff alleged he was to have a 10% interest in all oil and gas leases, as well as profits which might flow from them, acquired prior to the date of such termination. The agreement contemplated the purchase of oil and gas leases and their development. Pursuant to this agreement it is alleged that numerous oil and gas leases were acquired in both Oklahoma and Kansas, title to which was taken or held at time of trial in one or the other corporate defendants. Some of these leases proved to be valuable, their total value approximating $6,000,000 at time of trial. After the leases began to produce oil, trouble developed between plaintiff and Kasishke, resulting in a termination of the alleged relationship in June, 1939.

By his suit plaintiff sought the following relief: That the relationship existing between him and Kasishke be adjudged to be a joint venture and that plaintiff be adjudged to be the owner and entitled to a 1/10th of all properties acquired during the time the relationship continued, and that defendants be required to make, execute and deliver to him an assignment for an undivided 1/10th interest in and to all of said oil and gas leases. In addition, plaintiff asks that the defendants be required to account to him for 10% of all profits already accrued from said leases. Plaintiff seeks in the alternative that in the event the court should determine he is not the owner of a 10% interest in the properties, he then be decreed to be entitled to 10% of the profits derived from the oil and gas business conducted by defendants, and that he have an accounting for same.

Upon trial the court heard the evidence as to the alleged relationship existing between plaintiff and defendants, filed findings of fact and conclusions of law, and entered the judgment from which this appeal is taken. By this judgment it was decreed "that the plaintiff, B. A. Baker, have and recover of and from the defendants, A. H. Kasishke, Coralena Oil Company, and Olive Drilling Company, or their predecessors, an undivided one-tenth interest in all of the interest owned by said defendants in and to each and every lease and leasehold estate acquired by the defendants A. H. Kasishke, Coralena Oil Company, and Olive Drilling Co., or their predecessors, during the period of time up to and including the 3rd day of June, 1939." Attached to and made a part of the judgment is a list of 26 oil and gas leases, properly described, acquired prior to June 3, 1939. The judgment directed that the defendants make proper conveyances of such 1/10th interest to the plaintiff, failing which within a specified time the decree should be and constitute sufficient muniment for vesting of title. The concluding paragraph of the judgment is as follows: "It is further ordered and decreed by the Court that this judgment is final so far as it has been determined that the plaintiff shall have and recover from the defendants a ten per cent interest in all of the defendants' interests in all properties acquired by defendants during the period of the joint adventure, and ten per cent interest in all profits earned during said period; but the court will at a date to be hereafter determined enter an order for an accounting for the purpose of determining the amount of money judgment to be entered for plaintiff, if any, and for the purpose of ascertaining what additional properties, if any, are covered by such ten per cent interest."

By a Motion to Dismiss Appeal, appellee has appropriately questioned the finality of the judgment, and whether or not said judgment has that degree of finality required for appeal is the sole question for consideration at this time.

Only "final decisions" of a District Court may be reviewed here on appeal. 28 U.S.C.A. § 225. By "final decisions" is meant final judgment or decree, In re Tiffany, 252 U.S. 32, 40 S.Ct. 239, 64 L.Ed. 443, and the finality of the judgment is to be determined from the face of the judgment, Gulf Refining Co. v. United States, 269 U.S. 125, 46 S.Ct. 52, 70 L.Ed. 195; Louisiana Nav. Co. v. Oyster Commission, 226 U.S. 99, 33 S.Ct. 78, 57 L.Ed. 138; Haseltine v. Central National Bank, 183 U.S. 130, 22 S.Ct. 49, 46 L.Ed. 117.

The distinction between an interlocutory and a final judgment, order or decree has been the subject of much discussion in the decisions of both Federal and State Courts. The Supreme Court recognizes that there is a lack of harmony in its decisions as to the finality of a judgment. See Georgia Ry. & Power Co. v. Decatur, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065. For this court to attempt by a general definition to distinguish one from the other would probably not be helpful. Suffice to say that a review of the adjudicated cases discloses that it is extremely difficult to define with any great degree of exactness the difference between a final and an interlocutory judgment or order. On the one hand we find those decisions that tend to limit and restrict appeals; that present the view that a case should not be tried and appealed by piecemeal; that a final judgment leaves nothing to be done except its execution and that no further proceedings are contemplated. For example,

"A decree cannot be said to be final until the court has completed its adjudication of the cause." Green v. Fisk, 103 U.S. 518, 519, 26 L.Ed. 485.

See, also, Latta v. Kilbourn, 150 U.S. 524, 14 S.Ct. 201, 37 L.Ed. 1169....

To continue reading

Request your trial
17 cases
  • Bendix Aviation Corp. v. Glass
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Febrero 1952
    ...327. 9 Catlin v. United States, 1945, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911; 28 U.S.C.A. § 1291, Note 102. 10 Kasishke v. Baker, 10 Cir., 1944, 144 F.2d 384, certiorari denied 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Beneficial Industrial Loan Corp. v. Smith, 3 Cir., 1948, 170 F.......
  • Clark v. Taylor
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 15 Octubre 1947
    ...inconsistent with the reasoning of my colleagues' decision here, see, e. g., Lydick v. Fischer, 5 Cir., 135 F.2d 983; Kasishke v. Baker, 10 Cir., 144 F.2d 384, certiorari denied 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Moreno v. United States, 1 Cir., 120 F.2d 128, 130; Hanney v. Frankli......
  • Republic of China v. American Express Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Junio 1951
    ...38, 40; Siegmund v. General Commodities Corp., 9 Cir., 175 F.2d 952, 953; Crutcher v. Joyce, 10 Cir., 134 F.2d 809, 813; Kasishke v. Baker, 10 Cir., 144 F.2d 384; cf. Reeves v. Beardall, 316 U.S. 283, 285, 62 S.Ct. 1085, 86 L.Ed. 1478; U. S. for use of Arnold v. Guimarin & Co., 263 U.S. 427......
  • Vincent v. Plecker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 13 Mayo 1946
    ...Co. v. Goodwin, 316 Mass. 3, 54 N.E.2d 676;Chase v. Driver, 8 Cir., 92 F. 780;Maas v. Lonstorf, 6 Cir., 166 F. 41, 44, 45;Kasishke v. Baker, 10 Cir., 144 F.2d 384. Compare Meier v. First Citizens Bankers Corp., 301 Mass. 410, 17 N.E.2d 106. 4. For Massachusetts cases, see Hutchins v. Nicker......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT