Union Tank Car Company v. Isbrandtsen
| Decision Date | 12 September 1969 |
| Docket Number | No. 258,Docket 33765,259,33766.,258 |
| Citation | 416 F.2d 96 |
| Parties | UNION TANK CAR COMPANY, Plaintiff-Appellee, v. Jakob ISBRANDTSEN, Defendant-Appellant, American Export Industries, Inc., Third-Party Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph Lotterman New York City (John D. Fassett, New Haven, Conn. and John Borst, Jr., Chicago, Ill., of counsel), for plaintiff-appellee.
Raymond J. Devlin, Hartford, Conn., for defendant-appellant.
Ralph G. Elliot, Hartford, Conn., for third-party defendant-appellant.
Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
Union Tank Car Company sued Ward Industries (corporate predecessor of American Export Industries) for damages for breach of a missile site construction subcontract. The litigation which had been instituted in Illinois and removed to Arizona was settled on an agreement by Ward to pay $1,000,000 on or before September 30, 1964, evidenced by a note guaranteed by Isbrandtsen, with other provisions not here material, and to pay reasonable attorneys' fees, costs and expenses incurred by Union in enforcement of the guarantee or the collection of any of the liability of Ward and Isbrandtsen. Union sued in Arizona on the settlement agreement and recovered judgment in the District Court, reversed in the Court of Appeals for the Ninth Circuit for lack of jurisdiction of the person by reason of inadequate service of process. Thereafter in suit on the settlement agreement filed in the meantime in the District of Connecticut, judgment entered in favor of Union against Isbrandtsen and American Export in the amount of $1,337,916.60 together with costs and attorneys' fees to be fixed by further order of court. A cross-claim by American Export was dismissed. The court entered an order for final judgment pursuant to Rule 54(b) Fed.R. Civ.P. certifying that there was no just reason for delay and directing entry of final judgment. Appeal was taken by Isbrandtsen and American Export. Following our decision in Aetna Casualty & Surety Co. v. Giesow, 412 F.2d 468 (June 17, 1969), appellants moved to determine appealability.
We hold that Giesow ruling applicable here, and dismiss the appeal from the money judgment in favor of Union as premature. The claim under the settlement agreement includes attorneys' fees and expenses provided for in the agreement itself and should be fully determined before judgment on the...
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