345 F.2d 269 (9th Cir. 1965), 19526, Firchau v. Diamond Nat. Corp.

Docket Nº:19526.
Citation:345 F.2d 269
Party Name:Albert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants, v.
Case Date:April 26, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 269

345 F.2d 269 (9th Cir. 1965)

Albert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants,

v.

DIAMOND NATIONAL CORPORATION, a Delaware corporation, Appellee.

No. 19526.

United States Court of Appeals, Ninth Circuit

April 26, 1965

Page 270

         Clarence H. Pease, Sacramento, Cal., for appellants.

         Arthur R. Albrecht, Craig McAtee, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for appellee.

         Before CHAMBERS, HAMLEY and BROWNING, Circuit Judges.

         HAMLEY, Circuit Judge:

         On January 24, 1963, Albert J. Firchau and others commenced this action against Diamond National Corporation (Diamond) to recover damages in the sum of $1,500,000 for breach of contract. The action was filed in the Superior Court of the State of California in and for the County of Tehama, and was removed to the federal district court because of diversity of citizenship. On motion of Diamond the complaint, in which one claim was asserted, was dismissed on October 17, 1963.

         A first amended complaint, purporting to state two claims, was filed on November 21, 1963. The first claim was in general similar to that stated in the original complaint, and sought relief in the same amount. The second claim was stated in the alternative and sought damages in the sum of $1,297,500.

         On motion of Diamond, the district court also dismissed the first amended complaint on June 25, 1964. On July 21, 1964, plaintiffs filed a notice of appeal '* * * from the Order dismissing the second claim as pleaded in the first amended complaint. * * * The court entered a final judgment dismissing the action on July 24, 1964. No further notice of appeal was filed.

         Diamond has moved to dismiss the appeal for lack of jurisdiction in this court. The company argues that the order of June 25, 1964, dismissing the first amended complaint, is not an appealable order; that Firchau's purported appeal therefrom is therefore ineffectual; and that no appeal was taken from the subsequently-entered judgment dismissing the action.

          An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643.

Page 271

The special circumstances under which this court will regard such an order as final, and therefore appealable, must be such as to make it clear that the district court determined that the action could not be saved by any amendment of the complaint. Marshall v. Sawyer, supra, at 643.

         Assuming such circumstances did not exist in this case, the question remains whether the notice of appeal, filed on July 21, 1964, may not be regarded as running against the subsequently-filed final judgment of dismissal.

          This court is extremely liberal in accepting as sufficient for the purposes of a notice of appeal informally drawn and improperly labeled documents. Poe v. Gladden, 9 Cir., 287 F.2d 249, 251; Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282. In this spirit, we regard the notice of appeal here in question as directed to the final judgment of dismissal, overlooking as a technical defect not affecting substantial rights, the premature filing of that notice.

         The Supreme Court of the United States similarly viewed a notice of appeal filed before entry of the final decision in a criminal proceeding. See Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. It did so in view of Rule 52(a), Federal Rules of Criminal Procedure, reading: 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' Since a substantially similar provision is contained in Rule 61, Federal Rules of Civil Procedure, we think the rationale of Lemke supports our view as expressed above. 1 The motion to dismiss the appeal is denied.

         On the merits, Firchau questions only the dismissal of the second claim of the first amended complaint, making no issue of the dismissal of the first claim stated in that pleading.

         In his second claim Firchau alleged that he and Diamond, during the winter of 1960 to 1961, entered into an oral contract wherein Firchau agreed to cut and deliver to Diamond's Red Bluff or other plants, forty-five thousand M board feet of logs for a minimum price of $22.75 per thousand. Firchau further alleged that, on or about April 1, 1961, Diamond anticipatorily breached that oral contract, to Firchau's damage in the amount of $1,297,500.

         In dismissing this claim for failure to state a claim on which relief can be granted the district court held that the claim is barred by California Code of Civil Procedure § 339(1). That statute provides that an action upon a contract not founded upon an instrument in writing must be brought within two years after the accrual of the cause of action. According to the allegations of the first amended complaint, the cause of action on the second claim accrued on April 1, 1961. The district court held that the action upon that claim was not brought until November 21, 1963, when the first amended complaint was...

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