Jung v. K. & D. Mining Co.
| Decision Date | 20 August 1957 |
| Docket Number | No. 12048.,12048. |
| Parties | Henry M. JUNG et al., etc., Plaintiffs-Appellants, v. K. & D. MINING CO., Inc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Zeamore A. Ader, Chicago, Ill., for appellant.
Floyd F. Shields, Chicago, Ill., and Samuel J. Wettrick, Seattle, Wash., for appellee.
Before DUFFY, Chief Judge, and LINDLEY, Circuit Judge.
On May 10, 1955 the district court granted defendants' motion to dismiss plaintiffs' amended complaint, based upon an alleged violation of the Securities Act of 1933, 15 U.S.C.A. §§ 77a-77aa, and the Securities Exchange Act of 1934, 15 U.S.C.A. §§ 78a-78jj, for failure to state a valid claim. Though the order dismissed the complaint, it provided that plaintiffs have 20 days within which to file an amended complaint.
On May 27, 1955, plaintiffs moved that the order dismissing the complaint be vacated, and, in the alternative, that if the court should overrule plaintiffs' motion to vacate, the time for filing an amended complaint be extended for 20 days. On the same day, the court denied this motion to vacate, but granted plaintiffs 20 days within which to amend. No amendment was ever filed. Indeed, plaintiffs took no action whatever until March 25, 1957, some 22 months after entry of the order. On that date, they filed a statement that they intended to stand on the amended complaint previously dismissed by the court. On the same day the court entered a second order dismissing the cause of action, from which plaintiffs appealed on April 16, 1957.
Defendants move to dismiss the appeal on the jurisdictional ground that notice of appeal from the final decision of the trial court had not been filed within the statutory time limit. They argue that the order dismissing the complaint with leave to amend entered May 27, 1955 became a "final decision" within the meaning of 28 U.S.C. § 1291 upon expiration of the time for filing the second amended complaint fixed by the court.
In considering what constitutes a "final" decision, it has frequently been stated that an order dismissing a complaint does not become final and appealable until the plaintiff expressly elects to stand on his complaint and final judgment is entered in the court. Crutcher v. Joyce, 10 Cir., 134 F.2d 809; Riverside Oil and Refining Co. v. Dudley, 8 Cir., 33 F.2d 749. But, in Stewart v. Lincoln-Douglas Hotel Corp., 7 Cir., 208 F.2d 379, this court retreated somewhat from rigid adherence to this doctrine. In that case, plaintiff appealed from an order dismissing his suit. Defendant moved to dismiss the appeal on the ground that the order of which complaint was made was of interlocutory character, urging that it lacked finality in that plaintiff had failed to elect expressly to stand on his amended complaint and, further, that no final judgment disposing of the cause of action had been entered. This court, relying on its decision in Asher v. Ruppa, 7 Cir., 173 F.2d 10, 11, concluded that the order dismissing the amended complaint was "final" within the meaning of the statute, saying in 208 F.2d at page 381: "* * * it is clear that the District Court by its order dismissing the complaint intended to and did terminate the litigation; and that plaintiff by promptly taking this appeal elected to stand on the complaint." Thus, we conclude that there were two bases for the determination that the order was final, notwithstanding the absence of a formal judgment dismissing the cause of action, namely, the intent of the court and the action of the plaintiff.
In the case before us, there are two distinguishing characteristics not found in either of the Stewart or Asher cases. First, the court, in addition to granting the motion to dismiss, granted plaintiffs leave to file a second amended complaint within 20 days. It is clear that during the 20 day period, the order of May 27, 1955 was not appealable, as the allowance of leave to amend precluded finality. Oppenheimer v. F. J. Young & Co., 2 Cir., 144 F.2d 387; American Broadcasting Co. v. Wahl Co., 2 Cir., 121 F.2d 412; Atwater v. North American Coal Corp., 2 Cir., 111 F.2d 125; Western Electric Co. v. Pacent Reproducer Corp., 2 Cir., 37 F.2d 14. As the court in Western Electric Co. v. Pacent Reproducer Corp., supra, said at page 15: "Clearly the case remains pending in the District Court during the period within which amendment is...
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...initial] order of May 27, 1955 became final and appealable upon expiration of the time for making amendment." Jung v. K. & D. Mining Co. , 246 F.2d 281, 282 (7th Cir. 1957), rev'd , 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806. The Seventh Circuit acknowledged "some authority for the propositi......
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Jung v. Mining Co
...that purpose, sustained the motion and dismissed the appeal of April 16, 1957, as not taken within 30 days from the entry of the judgment. 246 F.2d 281. We think that the District Court's order of May 27, 1955, denying petitioners' motion to vacate the order of May 10, 1955, but granting fu......
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