Asher v. Ruppa
| Decision Date | 25 March 1949 |
| Docket Number | No. 9747.,9747. |
| Citation | 173 F.2d 10 |
| Parties | ASHER v. RUPPA. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Meyer Abrams, of Chicago, Ill. (Shulman, Shulman & Abrams, of Chicago, Ill., of counsel), for appellant.
William B. Rubin, Myron L. Gordon and Joseph P. Brazy, all of Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.
Plaintiffs have appealed from an order dismissing their complaint upon the ground that it did not state a claim upon which relief could be granted.
Before proceeding to discuss the merits of this appeal, we pause to consider the claim of Derzon, that the order dismissing the complaint for failure to state a claim upon which relief could be granted is not a final order; in other words, the jurisdiction of this court is questioned on the ground that the order is not one from which an appeal will lie. With this view we are unable to agree.
A judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Milton v. United States, 5 Cir., 120 F.2d 794, and Karl Kiefer Mach. Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469. True it is, that where a motion to dismiss a complaint is sustained and the complaint is dismissed, and the plaintiff does not desire to amend, he should announce his election to stand on his complaint, let a final judgment be entered dismissing the action, and then appeal from that judgment. But in our case, as in Crutcher v. Joyce, 10 Cir., 134 F.2d 809, it is clear that the court completely determined plaintiffs had no right of action against defendants, and that by the order dismissing the complaint the court intended to and did terminate the litigation, and that plaintiffs, by appealing, elected to stand on their complaint; hence we think the order is appealable. See also Johnson v. Horton, 9 Cir., 63 F.2d 950.
In support of the order defendants contend that (1) there is no consideration to support the agreement; (2) the contract upon which the action is based is indefinite; and (3) the contract is against public policy.
The complaint shows affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It appears that plaintiffs and defendants were stockholders of Bismarck Hotel Company, an Illinois corporation, and that while defendants were engaged in a controversy with the management of the hotel company they solicited plaintiffs for their proxies — to be voted in favor of the person nominated by defendants as a director, and that in consideration for the execution and delivery of plaintiffs' proxies defendants promised and agreed that plaintiffs would share in all of the benefits which defendants might derive as a result of the election. Pursuant to this agreement, plaintiffs gave their proxies to their 760 shares to defendants, and defendants informed plaintiffs that defendant Derzon had been elected as a director of the corporation. Thereafter, without the knowledge or consent of plaintiffs, defendants entered into a secret deal with Bismarck and its officers to settle all controversies in consideration of the sale to them by defendants of all the stock defendants had voted at the meeting at which Derzon was elected director, for which defendants received a sum greatly above the market price but which did not include plaintiffs' 760 shares, and instead of including in the sale the stock of plaintiffs, defendants purchased stock in the market greatly below the amount of the sale price to Bismarck.
Plaintiffs are not required to plead all their evidence, and under the rules of civil procedure there is no pleading requirement of stating facts sufficient to constitute a cause of action; indeed, the only requirement is that there be "a short and plain statement of the claim showing that the pleader is entitled to relief". Federal Rules of Civil Procedure, rule 8(a), 28 U.S. C.A. The law is now settled that upon motions to dismiss a complaint on the ground that it does not state a claim...
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