179 F.2d 475 (7th Cir. 1950), 9993, Winsor v. Daumit

Docket Nº:9993.
Citation:179 F.2d 475
Party Name:WINSOR v. DAUMIT.
Case Date:February 02, 1950
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 475

179 F.2d 475 (7th Cir. 1950)




No. 9993.

United States Court of Appeals, Seventh Circuit.

February 2, 1950

Where appellate court was required to dismiss an appeal from an order because it was not a final judgment and district court made no determination that there was no just reason for delay or any direction for entry of judgment as provided in the federal rule, appellate court would not enter an interim order directing district court to make a determination of the two conditions precedent in the rule to perfection of an appeal thereunder, in view that the rule itself defines the powers of the district court and orderly procedrue requried the appellate court to leave to the discretion of the district court, its further action in the premises. Federal Rules of Civil Procedure, rule 54(b), 28 U.S.C.A.

Page 476

James R. McKnight, Robert C. Comstock, Chicago, Ill., for appellant.

Casper W. Ooms, George E. Forst, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judge.

LINDLEY, Circuit Judge.

Plaintiff instituted action to recover damages for breach of contract. Defendants filed two counterclaims. A motion to dismiss the second counterclaim, which sought a declaratory judgment of invalidity and noninfringement of a copyright owned by plaintiff, was sustained and the counterclaim dismissed. From that order defendants perfected their appeal. The merits of the original claim and those of the first counterclaim remain undetermined in the District Court. Plaintiff insists that an appeal from the order entered does not lie.

Under the Judicial Code, 28 U.S.C.A. § 1291, we have jurisdiction of appeals 'from all final decisions of the district courts, ' subject, however, to provisions permitting appeals from certain interlocutory orders mentioned in Section 1292 and in other acts of Congress relating to certain specific remedies. The present order does not fall within any of the interlocutory orders from which an appeal lies under Section 1292 or under any other act of Congress authorizing an appeal from such an order.

Federal Rule of Procedure 54(b), 28 U.S.C.A., revised December 27, 1946, effective March 19, 1948, provides that when more than one claim for relief is presented in an action, whether as claim or counterclaim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment, and continues 'In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.' In the present instance the District Court made no determination that there was no just reason for delay or any direction for entry of the judgment, as provided in the rule. Thus the order from which the appeal is taken is, under the rule, not a final judgment.

The Advisory Committee on Amendments to the Federal Rules of Procedure, in 28 U.S.C.A. under Rule 54, after commenting upon the confusion then existing in the determination of whether an order was appealable, stated that, after extended consideration, it had concluded that a retention of the rule prohibiting piecemeal disposal of...

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