Bertman v. Kirsch Co

• Decision Date: 22 June 1964
• Docket Number: No. 1035,1035
• Citation: 84 S.Ct. 1913,12 L.Ed.2d 1047,377 U.S. 995
• Parties: Joseph BERTMAN, doing business as Bertman Food Products, petitioner, v. J. A. KIRSCH CO
• Court: U.S. Supreme Court

377 U.S. 995

84 S.Ct. 1913

12 L.Ed.2d 1047

Joseph BERTMAN, doing business as Bertman Food Products, petitioner,

v J. A. KIRSCH CO.

No. 1035.

Supreme Court of the United States

June 22, 1964

Leonard Feldman, for petitioner.

Richard J. Burke and Myron L. Shapiro, for respondent.

Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.

Denied.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join, dissenting from the denial of certiorari.

The United States contracted with Bertman, the petitioner here, for the delivery of imported tomato paste. Bertman in turn contrated with J. A. Kirsch Co. to supply the paste. After the United States had taken delivery, it claimed that the paste was spoiled, and it sued Bertman for breach of contract. In addition to defending against the Government's claims, Bertman brought Kirsch in as a defendant, claiming that if the paste was defective then the blame rested on Kirsch and that if the Government recovered against Bertman he in turn was entitled to recover against Kirsch. After a trial in the United States District Court, the jury found that the paste was not defective, and the court entered judgment holding Bertman not liable. Since Bertman owed the Government nothing, naturally Kirsch owed Bertman nothing, and judgment was entered holding that Bertman should recover nothing from Kirsch. Under 28 U.S.C. § 2107 and Fed.Rules Civ.Proc. 73, a party aggrieved by a judgment of this kind has sixty days in which to appeal. In this case the only party which stood to lose by the judgments when entered was the United States. At some time on the 60th day it filed a notice of appeal with the clerk of the court. At the moment this appeal was filed, Bertman once again was subject to the danger of liability which had originally caused him to bring Kirsch into the suit as a defendant. The natural defensive step for Bertman to take then was to file a notice of appeal against Kirsch, but notice of the Government's appeal was not served on Bertman until after the 60 days had passed—too late, both courts below held, for Bertman to take his appeal. Thus, even though Bertman's abili y to protect himself against paying for another man's wrong depended on his having notice of the Government's appeal just as much as it depended on his having notice when he was sued in the first place, neither the statutes nor the rules required that he have notice in time to file his own...