Board of Sup'rs v. Knickerbocker Ice Co., 158.

• Decision Date: 09 December 1935
• Docket Number: No. 158.,158.
• Citation: 80 F.2d 248
• Parties: BOARD OF SUP'RS OF ROCKLAND COUNTY v. KNICKERBOCKER ICE CO.
• Court: U.S. Court of Appeals — Second Circuit

80 F.2d 248 (1935)

BOARD OF SUP'RS OF ROCKLAND COUNTY v. KNICKERBOCKER ICE CO.

No. 158.

Circuit Court of Appeals, Second Circuit.

December 9, 1935.

Dunnington & Gregg and Louis G. Bernstein, all of New York City, for appellant.

Ernest W. Hofstatter, of Nyack, and John A. Miller, of New York City, for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the defendant from an order entered in a proceeding to condemn land, begun by the plaintiffs in October, 1929, in the Supreme Court of New York. The defendant, a foreign corporation, removed the cause to the District Court and answered on April 4, 1930; and there the matter rested until June 29, 1932, when there was a general call of the common-law docket. Under section 33 of the General Rules of the District Court for the Southern District of New York,¹ causes in which no steps have been taken for over a year may be dismissed by the court sua sponte at a general calendar call, notice of which must be published in the New York Law Journal. The suit at bar was among those so advertised in June, 1932, and was dismissed with a number of others, in none of which did any party appear. A judgment, mistakenly called an "order," was entered on the 30th of June, entitled in all these cases, which "ordered that said causes be dismissed for lack of prosecution without costs"; and the clerk made a corresponding entry in the docket under the title of this suit, and on July 18, 1932, added the entry: "Mailed Notice to attys." In the docket under the heading "Attorneys," and opposite the title of the cause, was the entry, "Dunnington, Walker & Gregg, 5 Nassau Street — Removal"; these gentlemen were the defendant's attorneys, but the names of the plaintiff's attorneys did not appear on the docket. On June 18, 1935, the plaintiffs moved to vacate the judgment of June 30, 1932, upon affidavits of their attorney and counsel and of their chairman, that none of them had ever received notice of the judgment, and upon a certificate of the clerk of the District Court that, since the only appearance posted in the docket was of the defendant's attorneys, it was "unlikely that any notice of dismissal was mailed to the plaintiffs' attorney or counsel." The judge vacated the judgment and ordered the cause to stand for trial; and the defendant appealed.

In Zadig v. Ætna Ins. Co., 42 F.(2d) 142, we took jurisdiction over the appeal only because the court, by refusing to reopen the judgment, had finally disposed of the cause; for an order vacating a judgment and setting down the cause for trial is interlocutory and not appealable. O'Brien v. Lashar, 266 F. 215 (C.C.A. 2); Mitchell v. Mason, 4 F.(2d) 705 (C.C.A. 5). Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013, established an exception to this when the term had expired, on the ground that in that case the motion was a "new proceeding," and the order concluded it, even though its content was interlocutory, viewed from its effect in the main cause. Thus, as the court said, appellate jurisdiction depended upon whether the District Court had itself had jurisdiction over the judgment. The same result was reached in City of Manning v. German Ins. Co., 107 F. 52 (C.C.A. 8), S. M. Hamilton Coal Co. v. Watts, 232 F. 832 (C.C.A. 2), and Greyerbiehl v. Hughes Electric Co., 294 F. 802, 804 (C.C.A. 8), by saying that one may always appeal upon the question whether the District Court had jurisdiction over its judgment. Smith v. United States ex rel. Gorlo (C.C.A. 7) 52 F.(2d) 848 (semble). In Stevirmac Oil & Gas Co. v. Dittman, 245 U.S. 210, 38 S.Ct. 116, 62 L.Ed. 248, the District Court had refused to vacate a default judgment entered eighteen months before the defendant moved. While it does not expressly appear that this had been after the expiration of the term, that was undoubtedly the case, and the motion was a "new proceeding," so that even an order vacating the judgment would have been appealable to this court. This is probably what Day, J., meant when he said (245 U.S. 210, page 216, 38 S.Ct. 116, 62 L.Ed. 248), that the judgment was final because the proceeding was "in effect an independent action," though the decision went off on a point of jurisdiction peculiar to the Supreme Court and does not concern us. Thus the first question here is whether the judge had...