Elfman Motors, Inc. v. Chrysler Corp.

• Decision Date: 19 December 1977
• Docket Number: No. 77-2303,77-2303
• Citation: 567 F.2d 1252
• Parties: 1977-2 Trade Cases 61,795 ELFMAN MOTORS, INC., Appellant, v. CHRYSLER CORPORATION, Chrysler Motors Corporation, and Chrysler Leasing Corporation.
• Court: U.S. Court of Appeals — Third Circuit

Page 1252

567 F.2d 1252

1977-2 Trade Cases 61,795

ELFMAN MOTORS, INC., Appellant, v. CHRYSLER CORPORATION, Chrysler Motors Corporation, and Chrysler Leasing Corporation.

No. 77-2303.

United States Court of Appeals, Third Circuit.

Submitted Dec. 5, 1977.

Decided Dec. 19, 1977.

David Berger, Warren D. Mulloy, Steven M. Kramer, Berger & Montague, Philadelphia, Pa., for appellant.

Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellees, Chrysler Financial Corp. and Chrysler Credit Corp.

Robert S. Ryan, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees, Chrysler Corp., Chrysler Motors Corp., Chrysler Leasing Corp. and Chrysler Realty Corp.

Before WEIS and MARIS, Circuit Judges.

OPINION

PER CURIAM:

This is a suit brought by Elfman Motors, Inc. (herein Elfman) in the District Court for the Eastern District of Pennsylvania against Chrysler Corporation (herein Chrysler), Chrysler Motors Corporation (herein Motors), Chrysler Leasing Corporation (herein Leasing), Chrysler Financial Corporation (herein Financial), Chrysler Credit Corporation (herein Credit), and Chrysler Realty Corporation (herein Realty). On September 20, 1976, summary judgment was entered in favor of Financial and Credit on all counts of the complaint. Trial as to the remaining defendants began in February 1977. On February 28 the district court directed a verdict in favor of those defendants on certain of the claims asserted by Elfman in the complaint and the trial continued as to the remaining claims. The jury rendered its verdict against Chrysler and in favor of the remaining defendants, on which verdict judgment was entered on March 9, 1977. Motions for judgment n. o. v. and for a new trial were then made by Chrysler and on August 9, 1977 the district court granted Chrysler's motion for judgment n. o. v. On August 19, 1977, Chrysler's motion for a new trial was granted to be effective only in case the judgment n. o. v. was reversed on appeal.

Elfman filed a notice of appeal on September 1, 1977. Its caption indicated as the parties involved Elfman as plaintiff and Chrysler, Motors and Leasing as defendants. Financial and Credit were not referred to in the caption or otherwise as parties and they were not served with copies of the notice of appeal by counsel for Elfman, the appellant, who served copies only on counsel for Chrysler, Motors and Leasing. The notice itself stated that the appeal was

"from the Orders of the District Court granting defendant Chrysler Corporation's Motion for Judgment Notwithstanding the Verdict, dated August 9, 1977, granting in part defendants Chrysler Corporation, Chrysler Motors Corporation and Chrysler Credit Corporation's ¹ Motion for a Directed Verdict, dated February 28, 1977, and granting Chrysler Corporation's Motion for a New Trial, dated August 9, 1977."

However, in its subsequently filed Designation of Issues for Appeal and Designation of the Appendix Elfman mentioned the summary judgment entered in favor of Financial and Credit on September 20, 1976. Thereafter Financial and Credit filed a joint motion to dismiss the appeal as to them upon the ground that the notice of appeal does not designate the summary judgment entered in their favor. Chrysler, Motors, Leasing and Realty have filed a response to the motion stating that they do not contest it. Elfman has filed a memorandum in opposition and the motion is now before us for disposition.

The motion must be granted. 28 U.S.C. § 2107 provides with exceptions not here material that

"no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree."

Thus the jurisdiction of the court of appeals is invoked by the filing of a notice of appeal. Donovan v. Esso Shipping Company, 259 F.2d 65, 68 (3d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959). It is, of course, true that since, except in certain types of cases, only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment. 9 Moore's Federal Practice, 755 (2d ed. 1975).

But in any case, the notice of appeal must conform to the requirement of Rule 3(c), F.R.App.P., that it "shall designate the judgment, order or part thereof appealed from." When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal. Spound v. Mohasco Industries, Inc.,534 F.2d 404, 410 (1st Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 238, ...