Baity v. Ciccone
| Citation | 507 F.2d 717 |
| Decision Date | 13 December 1974 |
| Docket Number | No. 74-1720,74-1720 |
| Parties | Leroy BAITY, Petitioner-Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Leroy Baity, pro se.
Bert C. Hurn, U.S. Atty., Kansas City, Mo., for appellee.
Before GIBSON, Chief Judge, HEANEY and STEPHENSON, Circuit Judges.
Petitioner Leroy Baity appeals a dismissal of his petition for habeas corpus which was entered by the United States District Court for the Western District of Missouri by means of two separate orders dated April 4, 1974 and June 20, 1974. No judgment of dismissal has ever been entered on a separate document. We have concluded that we must dismiss the appeal fro lack of jurisdiction.
Federal Rule of Civil Procedure 58 1 provides:
* * * Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided by Rule 79(a). * * *
This requirement is not met by a provision within a court's memorandum opinion and order to the effect that judgment be entered. See 6A Moore, Federal Practice 58.02; 11 Wright & Miller, Federal Practice and Procedure 2785 at 14. Thus, although the judge captioned each of his two written opinions as an 'order * * * And Final Judgment,' the separate document requirement of the rule was not met.
The lack of a separate entry of judgment is not a mere technical defect which can be overlooked by this Court, but rises to jurisdictional status. Although some courts have indicated that failure to enter judgment may be a mere technical error if the judge 'intended' judgment to be entered, see e.g. Superior Life Insurance Co. v. United States, 462 F.2d 945 (4th Cir. 1972); United States v. Evans, 365 F.2d 95 (10th Cir. 1966), the Supreme Court has subsequently declared that the separate document provision of Rule 58 'must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.' United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam). The defect is a jurisdictional one, because the jurisdictional basis of this appeal, 28 U.S.C. 1291, provides that a 'final decision' must have been rendered in the District Court. No final decision has been rendered within the meaning of that jurisdictional statute until a separate judgment has been entered. 2 See Richland Trust Co. v. Federal Insurance Co., 480 F.2d 1212, 1213-1214 (6th Cir. 1973) (per curiam). Therefore, we lack jurisdiction to entertain this appeal.
Upon the entry of a separate judgment by the District Court and the docketing of an appeal in this Court, we will hear and determine the matter.
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...Federal Practice P 58.02 (Second Ed. 1974).17 See n. 5, Supra.18 See Cloyd v. Richardson, 510 F.2d 485 (6 Cir. 1975); Baity v. Ciccone, 507 F.2d 717 (8 Cir. 1974); State National Bank v. United States, 488 F.2d 890 (5 Cir. 1974). Cf. Superior Life Insurance Company v. United States, 462 F.2......
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...Co. v. Federal Ins. Co., 480 F.2d 1212 (CA6 1973); Home Fed. Sav. & Loan v. Republic Ins. Co., 405 F.2d 18 (CA7 1968); Baity v. Ciccone, 507 F.2d 717 (CA8 1974); Baker v. Southern Pac. Transp., 542 F.2d 1123 (CA9 1976). But see W. G. Cosby Transfer & Storage Corp. v. Froehlke, 480 F.2d 498,......
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Sassoon v. U.S., 76-1160
...be considered effective, and the application of Rule 58 to section 2255 cases consequently seems appropriate as well. Cf. Baity v. Ciccone, 507 F.2d 717 (8th Cir. 1974) (applying Rule 58's "separate document" standard in a habeas corpus action); see generally Rules Governing Section 2255 Pr......
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Lupo v. R. Rowland and Co.
...202 (1973). The district court's memorandum and order dated April 17, 1986, is also not a final order under Rule 58. In Baity v. Ciccone, 507 F.2d 717, 718 (8th Cir.1974), we found that the "requirement [of a separate document] is not met by a provision within a court's memorandum opinion a......