Merritt-Chapman & Scott Corp. v. City of Seattle, Wash.

• Decision Date: 02 September 1960
• Docket Number: No. 16772.,16772.
• Citation: 281 F.2d 896
• Parties: MERRITT-CHAPMAN & SCOTT CORPORATION, a Corporation, Appellant, v. CITY OF SEATTLE, WASH., a Municipal Corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F.2d 896 (1960)

MERRITT-CHAPMAN & SCOTT CORPORATION, a Corporation, Appellant, v. CITY OF SEATTLE, WASH., a Municipal Corporation, Appellee.

No. 16772.

United States Court of Appeals Ninth Circuit.

September 2, 1960.

Allen, DeGarmo & Leedy, Seattle, Wash., Manning, Hollinger & Shea, New York City, Glickstein, Crenshaw, Glickstein & Hulsey, Jacksonville, Fla., Gerald DeGarmo, Seattle, Wash., Robert J. Ruben, New York City, Stuart G. Oles, Seattle, Wash., for appellant.

A. C. VanSoelen, Corp. Counsel, Seattle, Wash., A. L. Newbould, Asst. Corp. Counsel, Helsell, Paul, Fetterman, Todd & Hokanson, Richard S. White, Richard W. Bartke, Sp. Counsel, Seattle, Wash., for appellee.

Before STEPHENS, HAMLIN and KOELSCH, Circuit Judges.

HAMLIN, Circuit Judge.

On December 8, 1954, Merritt-Chapman & Scott Corporation and Savin Construction Corporation entered into a contract with the City of Seattle, appellee, for the construction of Gorge High Dam and the Newhalen-Diablo Highway at a cost of something over $14,000,000. Over four years later, during which time construction work had continued upon the dam and highway, Merritt-Chapman & Scott Corporation, appellant, filed in the District Court for the Western District of Washington a complaint for declaratory judgment. Appellant, after alleging generally that difficulties had arisen between the parties during the five year construction period, such as changes in the contract and delays occasioned thereby, asked in the prayer of the complaint that the Court determine whether the contract was in full force and effect or had been abrogated, and alternatively, if it should be determined that the contract was in full force and effect, that the Court determine (a) whether there had been a suspension of work thereunder, and if so the amount of expenses incurred by appellant due to the delays, and (b) the number of days of extension of contract completion time to which appellant was entitled. Lastly, appellant prayed that "the Court reserve and continue jurisdiction over the Plaintiff and Defendant and over the subject matter of this action to find and decree such other rights as may be submitted for decision by either Plaintiff or Defendant by Supplemental Petition, Answer and Cross-Petition or otherwise; to enforce and supplement any Declaratory Judgment and Decree as entered herein and to herein determine any controversy which either has arisen or may hereafter arise between Plaintiff and Defendant out of the Contract, the work performed or to be performed thereunder * * *."

Appellee filed a motion to dismiss the complaint, setting forth three grounds.¹

This motion came on to be heard before The Honorable John C. Bowen, a United States District Judge at Seattle, Washington, on December 29, 1959, and on December 30, 1959, the District Court made an order which read in part as follows:

"It Is Hereby Ordered, Adjudged and Decreed that the complaint of the plaintiff be, and the same is hereby dismissed without prejudice to the right of the plaintiff to file herein its amended complaint or institute independently of this case a new and independent action or actions for any and all moneys and claims as and when they become due, owing and unpaid under and in connection with plaintiff\'s performance of its existing contract with the defendant."

On January 6, 1960, appellant filed notice of appeal to this Court from the order of the District Court dated December 30, 1959. It duly filed, on January 14, 1960, a bond for costs on appeal, together with a statement of points on appeal and designation of content of record on appeal.

Thereafter, on January 27, 1960, counsel for appellant appeared before the Honorable William J. Lindberg, a United States District Judge at Seattle, Washington, and after stating to the Court that he had found "some cases which convinced me it the order of December 30 was not an appealable order" he announced "the plaintiff in this case elects to stand upon the declaratory judgment complaint as filed in this case and not to amend as permitted by the order of December 30, 1959, as entered by Judge Bowen."

There was presented to and then signed by the Court on January 28, 1960, an order which read in part:

"Now, Therefore, It Is Hereby Ordered, Adjudged and Decreed that the above-entitled action is hereby finally dismissed upon the election of the Plaintiff not to file an Amended Complaint herein as permitted by the Order Dismissing Action signed, filed and entered herein December 30, 1959, such dismissal to be without prejudice or without cost to any party to this proceeding."

On the same day, appellant gave notice of appeal to this Court from the order of December 30, 1959, and "from the Order of Dismissal Upon Election of Plaintiff Not to Amend * * *" of January 28, 1960.

Appellee contends preliminarily (1) that when appellant filed its first notice of appeal on January 6, 1960, from Judge Bowen's order of December 30, 1959, the District Court was deprived of jurisdiction to proceed further in the case, and thus did not have jurisdiction to enter the order of January 28, 1960, and (2) that the order of December 30, 1959, was not an appealable order and therefore this appeal must be dismissed. We shall consider these contentions.

The first contention of appellee (that the taking of an appeal to the Court of Appeals deprives the District Court of jurisdiction) has been considered in many cases. The Court said in In re Federal Facilities Realty Trust, 7 Cir., 227 F.2d 651, 652, at page 653:

"It is well settled that filing a notice of appeal from a district court\'s judgment vests jurisdiction over the cause appealed in the court of appeals. Thereafter, the trial court has no power to modify its judgment or take other action affecting the cause without permission of the appellate tribunal, except insofar as jurisdiction is expressly reserved in the district court by statute or the Federal Rules of Civil Procedure, 28 U.S.C.A., to act in aid of the appeal. Miller v. United States, 7 Cir., 114 F.2d 267 * * *; Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349; Willoughby v. Sinclair Oil & Gas Co., 10 Cir., 188 F.2d 902; Jordan v. Federal Farm Mortgage Corp., 8 Cir., 152 F.2d 642, * * *; Daniels v. Goldberg, D.C., 8 F.R.D. 580, affirmed 2 Cir., 173 F.2d 911."

The question was further discussed in District 65, etc. v. McKague, 3 Cir., 1954, 216 F.2d 153, at page 155. The Court there said:

"Counsel for the appellants stated when this court indicated that the appeal should be dismissed that he could procure an order from the court below in conformity with Rule 54(b), F.R.C.P. This court then unequivocally informed counsel that the court below was without jurisdiction to make such an order since the appeal was pending in this court."

Thereafter an order was secured in the lower court pursuant to Rule 54(b), 28 U.S.C. and when the matter came on for rehearing before the Court of Appeals, the Court said:

"The court below was without jurisdiction to enter the order of May 24, 1954 since the appeal was pending in this court and the court below was without jurisdiction to enter any order which would affect the status of the appeal."

In the Ninth Circuit case of Hunter Douglas Corporation v. Lando Products, 9 Cir., 1956, 235 F.2d 631, at page 632, the Court said:

"Assuming that the trial court intended this statement in the findings of fact to be a final judgment dispositive of the counterclaim, we hold that it is beyond that court\'s jurisdiction. The perfection of the original appeal herein operated to transfer to

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