BEACON FED. S. & L. ASS'N v. Federal Home Loan Bank Bd.

• Decision Date: 02 June 1959
• Docket Number: No. 12475.,12475.
• Citation: 266 F.2d 246
• Parties: BEACON FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellant, v. FEDERAL HOME LOAN BANK BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

266 F.2d 246 (1959)

BEACON FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff-Appellant, v. FEDERAL HOME LOAN BANK BOARD, Defendant-Appellee.

No. 12475.

United States Court of Appeals Seventh Circuit.

May 6, 1959.

Rehearing Denied June 2, 1959.

Ray T. McCann, Milwaukee, Wis., Horace Russell, Chicago, Ill., Richard A. McDermott, Milwaukee, Wis., Cummings, Sellers, Reeves & Conner, Washington, D. C., of counsel, for appellant.

Mose Silverman, Ray E. Dougherty, Federal Home Loan Bank Board, Washington, D. C., Thomas H. Creighton, Jr., General Counsel, Albion W. Fenderson, George W. Murphy, Jr., Attorneys, Federal Home Loan Bank Board, Washington, D. C., of counsel, for appellee.

Before SCHNACKENBERG, HASTINGS and PARKINSON, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

This action was brought by Beacon Federal Savings and Loan Association, herein called Beacon, to review orders of Federal Home Loan Bank Board, herein called the Board, appointing a supervisory agent for Beacon and to test the constitutionality of those orders. Beacon based its action on certain provisions of the Home Owners' Loan Act of 1933 as amended (12 U.S.C.A. § 1464(d)(2)) and § 10 of the Administrative Procedure Act (5 U.S.C.A. § 1009). Each party made a motion for summary judgment. That of Beacon was denied; that of the Board was granted.¹

On June 9, 1958, the court signed its "Order for Judgment", which was entered in the civil docket on the same day. The Order for Judgment provided:

"* * * the Court, on the 28th day of May, 1958, having filed its opinion in this cause directing that an order for judgment be entered dismissing the action on its merits, it is

"Ordered, pursuant to said opinion, that plaintiff\'s cross-motion for summary judgment be and the same is hereby denied, and it is further

"Ordered, that defendant\'s motion for summary judgment dismissing the within action on its merits be and the same hereby is granted and that judgment be entered accordingly together with such costs as the defendant may be entitled to receive of the plaintiff."

On July 10, 1958, Beacon filed in the district court a motion, supported by petition, for the allowance of attorneys' fees and disbursements as prayed for in said petition. On August 28, 1958, that court filed its opinion saying inter alia:

"The court is not convinced that it has power to grant the prayer of the petition. However, even if the court has that power, it does not feel that this is a proper case for the court to exercise it. There is no fund being administered by the court, and the services of the attorneys did not enhance the funds of the association or preserve or protect such funds. It is only in an exceptional case where attorney fees should be ordered by the court to the unsuccessful litigant.

* * * * * *

"Plaintiff\'s petition is hereby denied without prejudice to the right of the plaintiff or the attorneys in question to make such a claim and take such action as they believe they are entitled to against anyone that they believe indebted to them on account of attorney fees and disbursements."

On September 3, 1958, the clerk of the court entered an order, as follows:

"Judgment.

The Court having heretofore, on the 9th day of June, 1958, entered its order in accordance with the opinion filed on the 28th day of May, 1958, directing that judgment be entered in favor of the defendant.

"Now on motion of the attorneys for the defendant,

"It Is Adjudged And Decreed that the complaint herein be dismissed upon its merits.

"Dated this 3rd day of September, 1958.

"Entered Dale E. Ihlenfeldt Clerk, U.S. District Court."

On September 19, 1958, Beacon filed a notice of appeal reading, as follows:

"Notice of Appeal.

"Notice is hereby given that Beacon Federal Savings and Loan Association, plaintiff above named, hereby appeals to the United States Court of Appeals for the Seventh Circuit from the final judgment entered in this action on the 3rd day of September, 1958, and from the whole thereof, and from intermediate orders therein adverse to plaintiff, including the order herein dated and entered August 28, 1958, which denied without prejudice plaintiff\'s petition for an order for allowance of attorneys\' fees and disbursements incurred on its behalf in connection with its seizure by the defendant, Federal Home Loan Bank Board, the appointment of a Supervisory Representative, administrative hearings before the defendant subsequent to the seizure consummating in the appointment of a Conservator, and in reference to the within action brought to review the findings and order of defendant, Federal Home Loan Bank Board.

"Dated September 4, 1958."

We have before us for disposition a motion by the Board to dismiss this appeal, "on the ground that the notice of appeal was not filed within sixty days from the date of the entry of the judgment appealed from, as more fully appears from the record herein and particularly from the Order for Judgment of the District Court, dated June 9, 1958, and the entries made in the civil docket of the...