190 F.2d 334 (2nd Cir. 1951), 22064, Republic of China v. American Exp. Co., Inc.

Docket Nº:22064.
Citation:190 F.2d 334
Party Name:REPUBLIC OF CHINA et al. v. AMERICAN EXPRESS CO., Inc., et al.
Case Date:June 12, 1951
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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190 F.2d 334 (2nd Cir. 1951)





United States Court of Appeals, Second Circuit.

June 12, 1951

Argued April 30, 1951.

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Burke & Burke, New York City, for plaintiffs.

Carter, Ledyard & Milburn, New York City, for defendant.

The facts are reported in the opinion of the district judge, 95 F.Supp. 740. His order reads in part as follows: '(4) That defendant pay into the registry of the court the sum of $524, 990.16, there to await the final determination of this action. (5) That upon paying said sum of $524, 990.16 into the registry of the court defendant be and is discharged from any and all liability either in this action or otherwise with respect to the credit balance of $524, 990.16 heretofore held by it in the name of The Directorate General of The Postal Remittances and Savings Bank. * * * (8) That this Court retain jurisdiction of this cause for the determination of the rights of the plaintiffs and the interpleaded defendants in and to said sum of $524, 990.16.'

Before LEARNED HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Plaintiffs brought suit against but one defendant, the Express Company. The order, from which plaintiffs appeal, discharged that sole defendant 'from any and all liability' to the plaintiffs. Thus there ended the plaintiffs' action against the only person they had sued. As the district judge said in his opinion, the effect of the order is that, 'for all practical purposes, ' the Express Company has become 'merely an indifferent bystander.' 1 (95 F.Supp. 744.) Such an order clearly seems, on its face, final and appealable. But the Express Company argues that it is not so, on this account: The order was entered on the Express Company's counterclaim which brought in new defendants, claiming to be entitled to the money owing by the Express Company, and the suit will now go forward between plaintiffs and those new defendants.

Aside from Rule 54(b), Fed. Rules Civ. Proc. 28 U.S.C.A., which we shall discuss later, support for that argument must be found in the doctrine of Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443. But we think the Hohorst doctrine inapposite here. It applies where the dismissal is of a party or parties jointly charged, or jointly claiming, with other parties who are not dismissed; 2 but there is no doctrine that

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finality is lacking in an order simply and solely because it dismisses less than all the parties. Where 'jointness, ' is some form, 3 is absent, the test in multiple party cases is whether the order terminates the suit 'as a severable matter, ' or a 'distinct matter, ' with respect to the party dismissed. See, e.g., Gibbons v. Equitable Life Assur. Soc., 2 Cir., 173 F.2d 337, 339; Zarati S.S. Co. v. Park Bridge Corp., 2 Cir., 154 F.2d 377, 379; Withenbury v. U.S., 5 Wall. 819, 18 L.Ed. 613; Savannah v. Jesup, 106 U.S. 563, 565, 1 S.Ct. 512, 27 L.Ed. 276; Williams v. Morgan, 111 U.S. 684, 689, 4 S.Ct. 638, 28 L.Ed. 559; Hill v. Chicago & E. Railroad Company, 140 U.S. 52, 54, 11 S.Ct. 690, 35 L.Ed. 331; U.S. v. River Rouge Co., 269 U.S. 411, 413-414, 46 S.Ct. 144, 70 L.Ed. 339; Clark v. Williard, 292 U.S. 112, 118, 54 S.Ct. 615, 78 L.Ed. 1160; Radio Station WOW v. Johnson, 326 U.S. 120, 126, 65 S.Ct. 1475, 89 L.Ed. 2092; Standley v. Roberts, 8 Cir., 59 F. 836; Rust v. United Waterworks Co., 8 Cir., 70 F. 129, 132; Bankers Trust Co. v. Missouri, K. & T. Ry. Co., 8 Cir., 251 F. 789, 797; Curtis v. Connly, 1 Cir., 264 F. 650, 651, affirmed 257 U.S. 260, 42 S.Ct. 100, 66 L.Ed. 222; Rector v. U.S., 8 Cir., 20 F.2d 845, 860-861; Thompson v. Murphy, 8 Cir., 93 F.2d 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, 434, 44 S.Ct. 144, 68 L.Ed. 371; 15 Un.of Chi.L.Rev. (1948) 960, 964.

As Judge Sanborn put it in Standley v. Roberts, 8 Cir., 59 F. 836, 839, where the court held appealable an order denying interpleader: 'A case cannot be brought to this court piecemeal. An order, judgment, or decree which leaves the rights of the parties to the suit affected by it undetermined- one which does not substantially and completely determine the rights of the parties affected by it in that suit- is not reviewable here until a final decision is rendered, nor is an order retaining or dismissing parties defendant, who are charged to be jointly liable to the complainant in the suit, appealable. U.S. v. Girault, 11 How. 22, 32, (13 L.Ed. 587); Hohorst v. Packet Co., 148 U.S. 262, 263, 13 S.Ct. 590 (37 L.Ed. 443). But a final decision which completely determines the rights, in the suit in which it is rendered, of some of the parties who are not claimed to be jointly liable with those against whom the suit is retained, and a final decision which completely determines a collateral matter distinct from the general subject of litigation, and finally settles that controversy, is subject to review in this court by appeal or writ of error. In Withenbury v. U.S., 5 Wall. 819, (18 L.Ed. 613),

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several libels were filed for the condemnation, as prize of war, of large quantities of cotton and other property. These labels were consolidated, and various claims were interposed in the consolidated suit for portions of the property, and among them the claim of Withenbury & Doyle. An order was made dismissing this claim, with costs, while the suit remained pending and the cotton and its proceeds undisposed of. The supreme court held that this order was appealable, because it completely determined the whole matter in controversy between these claimants and the United States, and was final as to all the parties to that severable controversy.'

The following kinds of orders have thus been held appealable: (a) An order dismissing claims of some only of several plaintiffs in a trust accounting action, where the divers claims are not joint. 4 (b) An order dismissing a claim of a creditor in a receivership proceeding, although the several claims of other creditors remain undetermined. 5 (c) An order denying the title of but one of several claimants in a condemnation suit, the claims not being joint. 6 (d) An order denying intervention when it is a matter of right. 7

In Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, at pages 513-516, 70 S.Ct. 322, at page 325, 94 L.Ed. 299, the Supreme Court (reversing this court, at this court's invitation) 8 said: 'When its claims were dismissed by the decree of April 1947, any grievance that Petroleum Conversion Corporation had was fully matured. At that point Petroleum was out of the case. The decree was not tentative, informal nor incomplete as to it; and the case was concluded and closed as to its counterclaims. The court's reservation of jurisdiction to supervise the distribution of the shares of stock and the provision for further proceedings to determine the individual shares in the aggregate recovery allowed did not in any manner affect Petroleum's rights. What the court reserved was essentially supervisory jurisdiction over the distribution among the class of the recovery awarded the intervenors as the class' representatives. The only questions were, so to speak, internal to the intervening interest. Petroleum no longer had any concern with these questions and, however they were resolved, Petroleum could not possibly have been...

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