Atkins, Kroll (Guam), Ltd. v. Cabrera

• Decision Date: 31 March 1960
• Docket Number: No. 16205.,16205.
• Citation: 277 F.2d 922
• Parties: ATKINS, KROLL (GUAM), LTD., Appellant, v. Julio R. CABRERA, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F.2d 922 (1960)

ATKINS, KROLL (GUAM), LTD., Appellant, v. Julio R. CABRERA, Appellee.

No. 16205.

United States Court of Appeals Ninth Circuit.

March 31, 1960.

Spiegel, Turner, Barrett & Ferenz, W. Scott Barrett, Lyle H. Turner, Agana, Guam, for appellant.

Charles J. Williams, Benicia, Cal., John A. Bohn, Arriola, Bohn & Gayle, Agana, Guam, for appellee.

Before ORR, HAMLEY, and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

Julio R. Cabrera, winner of a raffle conducted on the Island of Guam, was unable to obtain delivery of the new automobile which had been offered as the prize. He therefore brought this action to recover damages in the sum of $3,500 alleged to be the reasonable market value of the automobile. Named as defendants were Atkins, Kroll (Guam), Ltd., The American Legion, Ernie Pyle Post No. 37 (American Legion), and forty-four named individuals.

Three claims are stated in the second amended complaint. The first claim is directed against The American Legion and Ernie Pyle Post No. 37 (American Legion). The gist of this claim is that those two defendants had conducted a lottery but had refused to deliver the prize, an automobile valued at $3,500, to plaintiff who had purchased the winning ticket. The second claim is identical with the first except that it is directed against all defendants except Atkins, Kroll and The American Legion.

The third claim is directed against Atkins, Kroll alone. It is therein alleged that plaintiff was induced to purchase his winning lottery ticket in reliance upon a public display of an automobile which Atkins, Kroll had contracted to sell to Ernie Pyle Post No. 37. It is further alleged that Atkins, Kroll had given the Post possession of the automobile knowing that it was to be awarded as the lottery prize, and that the company thereafter knew that the automobile was being displayed for such purpose.

Despite this knowledge, it is alleged in the third claim, Atkins, Kroll did nothing to notify plaintiff or others that the Post was not the owner of the automobile. This act, omission, silence, and conduct of Atkins, Kroll, it is asserted, led plaintiff to purchase the lottery ticket. Upon Atkins, Kroll's failing to collect the purchase price of the automobile from the Post, plaintiff alleged, the company repossessed the automobile and refused to deliver it to plaintiff.

Pursuant to Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A., the trial court granted plaintiff's motion for a separate trial of the third claim. In a pretrial order thereafter entered it was recited that a separate trial of that claim had been ordered "since it is desirable that any liability of Atkins, Kroll first be determined." A trial of that claim was then had on stipulated facts. This led to entry of a judgment in the sum of $2,801.25 against Atkins, Kroll, from which judgment this appeal is taken.

At the outset we must on our own motion deal with the question of whether the judgment sought to be reviewed is a final decision within the purview of 28 U.S.C.A. § 1291, and Rule 54 (b), Federal Rules of Civil Procedure, 28 U.S.C.A. If not, and since it does not purport to be an interlocutory order, decree, or judgment appealable under 28 U.S.C.A. § 1292, we are without jurisdiction to entertain the appeal. Wynn v. Reconstruction Finance Corporation, 9 Cir., 212 F.2d 953, 955. If we are without jurisdiction, it is our duty to dismiss the appeal whether or not appellee has moved for dismissal. Burkhart v. United States, 9 Cir., 210 F.2d 602, 605.

It is provided in Rule 54(b) that when more than one claim for relief is presented in an action the court may direct the entry of a final judgment upon one or more but less than all of the claims "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

The term "claim" as used in this rule means cause of action. School District No. 5 v. Lundgren, 9 Cir., 259 F.2d 101, 104. The second amended complaint, summarized above, states three such claims, only one of which is disposed of by the judgment now before us. The trial court entered an express direction for the entry of the judgment on that claim. It did not, however, enter an express determination that there is no...