Biggins v. Oltmer Iron Works

• Decision Date: 01 March 1946
• Docket Number: No. 8892.,8892.
• Citation: 154 F.2d 214
• Parties: BIGGINS v. OLTMER IRON WORKS.
• Court: U.S. Court of Appeals — Seventh Circuit

154 F.2d 214 (1946)

BIGGINS v. OLTMER IRON WORKS.

No. 8892.

Circuit Court of Appeals, Seventh Circuit.

March 1, 1946.

Joseph Kamfner, Edwin A. Halligan, and Samuel M. Lanoff, all of Chicago, Ill., for appellee (in support of motion).

Harlan L. Hackbert, of Chicago, Ill., for appellant (in opposition).

Before EVANS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

Plaintiff in the court below was awarded what is designated as a partial summary judgment against the defendant, Oltmer Iron Works, a corporation.¹ The latter has appealed from such judgment, and plaintiff has moved to dismiss on the ground that the judgment is not final and therefore not appealable under Sec. 128 of the Judicial Code, 28 U.S.C.A. § 225.

It seems pertinent, for reasons which will subsequently appear, to relate briefly the proceedings in which the judgment was entered. Plaintiff's suit, instituted in a state court in Cook County, was removed to the United States District Court on petition of the defendant. According to the complaint, plaintiff sought to recover compensation for services rendered by him as a sales representative for the period commencing in November, 1942, and extending to March 1, 1944. It was alleged that the amount due and owing from the defendant was the sum of $13,308.80. This total amount was broken down into five designated items, including two items upon which the partial summary judgment was entered, as follows:

"$8,566.55 as per check from Corporation to Plaintiff dated May 31, 1944.

"$307.50 as per check from Corporation to Plaintiff dated June 8, 1944."

Subsequent to the removal of the cause to the federal court, defendant's motion to quash the service of summons was denied and also a motion by it for a more definite statement of claim. On December 27, 1944, defendant filed its answer, in which it alleged that the court was without jurisdiction because of defective process of service, and generally denied the allegations upon which plaintiff sought to recover. On December 29, 1944, plaintiff "in accordance with Rule 56 of the Rules of Civil Procedure for the District Court of the United States, moves for summary judgment in the sum of $8,874.05, in accordance with the affidavit and exhibits attached hereto." Attached to the motion was plaintiff's affidavit reciting the facts as to the service rendered by him upon which recovery was sought. The affidavit further alleged in substance that there was no substantial controversy with respect to the sum of $8,874.05, and that a summary judgment should be rendered in favor of the plaintiff for such amount. Attached to and in support of plaintiff's affidavit were numerous exhibits, including a letter from the defendant to plaintiff's attorneys which stated: "We are therefore enclosing herewith check in amount of $8,566.55 which we offer in full settlement of his account with us without prejudice." A copy of defendant's check, payable to plaintiff and referred to in the letter, was attached. A copy of another check in the amount of $307.50, subsequently issued by the defendant, payable to the plaintiff and sent to him in connection with a statement which contains the words "represents payment in full," was also attached.

The defendant filed no answer or counter-affidavits to plaintiff's motion and affidavits in support thereof for summary judgment. On March 22, 1945, the court entered the judgment appealed from "in the sum of $8,874.05, plus interest at the rate of 5% from May 31, 1944, in the sum of $369.70, making a total of $9,243.75, and that execution issue therefor." It will be noted that the judgment is for the total amount of the two checks with interest from the date of their issuance, which the defendant tendered plaintiff in settlement or compromise of his claim, and which plaintiff refused to accept. Whether defendant's proffer of these checks under the circumstances related affords an evidentiary basis sufficient to support any part of plaintiff's claim is not material to the instant motion to dismiss.

Defendant contends that the judgment is final and therefore appealable under Rule 54(b) of the Rules of Civil Procedure, as construed by the Supreme Court in Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478. Plaintiff contends that the judgment was entered under Rule 56, which contemplates only interlocutory and not final judgments, as construed by this court in Leonard v. Socony-Vacuum Oil Co., Inc., 7 Cir., 130 F.2d 535.

Rule 54 (b) provides for a final judgment upon one claim in a suit which is predicated upon more than one claim. The holding in the Reeves case that the judgment entered upon one of the claims in suit was final and appealable is plainly based upon the premise that such claim was "entirely distinct" from other claims sued upon. Defendant, recognizing the rationale of this decision, seeks its application here by arguing that plaintiff's cause of action is predicated upon separate and distinct claims. Specifically, it argues that the checks referred to in plaintiff's complaint, upon which the judgment in question rests, constitute separate and distinct claims. This contention in our view is clearly erroneous. The claim sought to be enforced is for services rendered by plaintiff to the defendant during a stated period of time. The cause of action is based upon a single claim. The fact that the complaint designated certain items, including the checks, as elements of the claim sought to be recovered is not inconsistent with this conclusion. Whether proper pleading required their designation is now immaterial. In any event, such items were of an evidentiary nature and in fact and reality were mere elements upon which the single claim was predicated.

Such being the situation, defendant's contention that Rule 54 (b) is applicable must be rejected. Plaintiff's contention that the judgment is not final because entered under Rule 56 requires not only an interpretation of such rule but an ascertainment as to whether the judgment was entered in conformity with the rule or in derogation thereof. We observe in the beginning and will attempt to show that this rule, in our opinion, does not contemplate a summary judgment for a portion of a single claim in suit. Neither does any other rule of the Rules of Civil Procedure so contemplate, as far as we are aware. A partial summary judgment, as the instant one is termed, under the circumstances before us is a misnomer.

Of the numerous paragraphs contained in Rule 56, only (a) and (d) are material to the instant situation. Paragraph (a) provides:

"A party seeking to recover upon a claim, counterclaim, or cross-claim * * * may, at any time after the pleading in answer thereto has been served, move * * * for a summary judgment in his favor upon all or any part thereof."

True, this paragraph standing alone indicates that a plaintiff may be awarded a summary judgment for a "part" of the claim sued upon. This paragraph, however, when a summary judgment is sought by plaintiff for only a part of his claim must be construed in connection with paragraph (d) entitled, "Case Not Fully Adjudicated on Motion." It provides:

"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary the court at the hearing of the motion * * * shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually...