Brandt v. Renfield Importers, Ltd.

• Decision Date: 15 July 1959
• Docket Number: No. 16157.,16157.
• Citation: 269 F.2d 14
• Parties: Harry BRANDT, d/b/a University City House of Liquors et al., Appellants, v. RENFIELD IMPORTERS, LTD., a Corporation et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

269 F.2d 14 (1959)

Harry BRANDT, d/b/a University City House of Liquors et al., Appellants, v. RENFIELD IMPORTERS, LTD., a Corporation et al., Appellees.

No. 16157.

United States Court of Appeals Eighth Circuit.

July 15, 1959.

J. L. London, St. Louis, Mo. (Mortimer A. Rosecan and Irving M. Malnik, St. Louis, Mo., on the brief), for appellants.

Richmond C. Coburn, St. Louis, Mo. (Coburn & Croft, St. Louis, Mo., on the brief), for appellee Renfield Importers, Ltd.

R. Walston Chubb, St. Louis, Mo. (Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., Earl E. Pollock, Washington, D. C., Julius Lewis, Sonnenschein, Lautmann, Levinson, Rieser, Carlin & Nath, Chicago, Ill., on the brief), for appellee James B. Beam Distilling Co.

Lewis C. Green and Donald J. Meyer (Green, Hennings, Henry & Evans, St. Louis, Mo., and Walter D. Wile, Washington, D. C., on the brief), for appellee Julius Wile Sons & Co., Inc.

Earl E. Pollock, Washington, D. C. (all of above counsel were on the respective briefs in support of motions to dismiss), for all appellees on motions to dismiss.

J. L. London, St. Louis, Mo. (all of above counsel were on appellant's brief in opposition to motions to dismiss), for appellants on motions to dismiss.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by eighteen retail liquor dealers doing business in St. Louis, Missouri, and vicinity against fourteen distillers, distributors, wholesalers or retailers for certain alleged violations of the Sherman Anti-Trust Act, 15 U.S.C.A. § 1 et seq., the Clayton Act, 15 U.S.C.A. § 12 et seq., and the Robinson-Patman Act, 15 U.S.C.A. § 13 et seq. The complaint alleged that the defendants created a monopoly in the retail liquor business in violation of the anti-trust laws; that they had conspired to monopolize and have monopolized the trade and commerce in said liquors and the retail distribution thereof in St. Louis, Missouri, and vicinity. The complaint also contained allegations as to damages claimed by the individual plaintiffs, for which they prayed judgment, including treble damages in the amount of $1,329,300.00 and costs, including reasonable attorney's fees, and for an injunction restraining the defendants and enjoining them from continuing said alleged violations of the anti-trust laws.

Three of the defendants, to-wit: Renfield Importers, Ltd., James B. Beam Distilling Co., and Julius Wile Sons & Co., Inc., each filed a motion to quash the service of process and to dismiss on the grounds of improper venue and lack of jurisdiction over the person. In resisting these motions plaintiffs contended that the court acquired jurisdiction because these three defendants (now appellees) were "transacting business" in the State of Missouri. The court heard these motions and on the proofs adduced sustained them and entered orders of dismissal as to the three defendants. Each of these orders of dismissal contains recital that:

"The Court further directs the entry of a final judgment on the claim as to said defendant, which is only one of several claims, and enters this order upon an express determination that there is no just reason for delay and enters this order upon an express direction for the entry of judgment in accordance with Rule 54(b) of the Rules of Civil Procedure 28 U.S.C.A.."

From the orders so entered plaintiffs have appealed, seeking reversal on substantially the following grounds. The court erred in holding that the three appellees were not "transacting business" in the Eastern Judicial District of Missouri within the meaning of Sec. 22, Title 15 U.S.C. (Sec. 12 of the Clayton Act) because under the anti-trust laws a corporation is engaged in transacting business for the purpose of venue, although it is not present by agent carrying on the business, if in fact in the ordinary and usual sense it transacts business therein of any substantial character.

Simultaneously with the filing of their briefs, each appellee filed a motion to dismiss the appeal, with supporting brief, on substantially the following grounds. The order appealed from is not an appealable order in that, (1) the complaint in this case sets forth a single claim and does not set forth multiple claims, (2) the order appealed from does not dispose of the entire matter and is, therefore, not a final judgment, and (3) the order appealed from is not appealable under Rule 54(b) of the Federal Rules of Civil Procedure because no more than a single claim for relief was presented in this action. These motions to dismiss the appeal were presented and argued by counsel for the respective parties in connection with the issues raised by appellants by their appeal.

Manifestly, if the motions to dismiss the appeal are well-founded, it should not be necessary to consider the merits of appellants' appeal and for that reason we shall first consider these motions.

The complaint charged the fourteen named defendants with combining and conspiring together in restraint of trade and commerce, which alleged restraint, it is charged, resulted in a monopoly. Plaintiffs demanded money judgment for treble damages in the amount of $1,329,300.00, for an injunction against the defendants, restraining and enjoining them from continuing the alleged violations of the Acts, and for costs and attorney's fees. By this complaint all of the fourteen defendants were charged as joint tort-feasors. There was no claim against any single defendant but they were charged with combining and conspiring together to commit the acts alleged to be violative of the anti-trust laws. The complaint was dismissed as to the appellees, not on the ground that they had not combined and conspired with the other defendants, but because the court had not acquired jurisdiction over them, and the dismissal of the complaint on that ground confessedly would constitute no bar to an action against them on the same cause of action in a court which might acquire jurisdiction by proper service of process. The dismissal of the action as to appellees left undetermined the issues in the case, either as against them or the other defendants. It is a salutary rule, long adhered to by Federal courts, that, except where otherwise provided by statute, a cause of action must be treated as a unit, not triable piecemeal, nor appealable in fragments. Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, 44 S.Ct. 144, 68 L.Ed. 371; Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Standley v. Roberts, 8 Cir., 59 F. 836; Moss v. Kansas City Life Ins. Co., 8 Cir., 96 F.2d 108; Minnesota Min. & Mfg. Co. v. Technical Tape Corp., 7 Cir., 208 F.2d 159; Hunter v. Federal Life Ins. Co., 8 Cir., 103 F.2d 192; Brandt v. Renfield Importers, Ltd., 8 Cir., 216 F.2d 206.

As early as 1894, in Standley v. Roberts, supra 59 F. 839, the late Judge Walter H. Sanborn, speaking for this Court, said:

"An order, judgment, or decree which leaves the rights of the parties to the suit affected by it undetermined — one which does not substantially and completely determine the rights of the parties affected by it in that suit — is not reviewable here until a final decision is rendered, nor is an order retaining or dismissing parties defendant, who are charged to be jointly liable to the complainant in the suit, appealable."

This rule has been consistently adhered to by this Court. Thus, in Moss v. Kansas City Life Ins. Co., supra 96 F.2d 110, it is said:

"Considering the rules announced in the above cases, it would seem that the application of the above rule announced in the Rosenberg, Pesaro and Goldey Cases Rosenberg Bros. & Co., Inc. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; The Pesaro, 255 U.S. 216, 41 S.Ct. 308, 65 L.Ed. 592; Goldey v. Morning News, 156 U.S. 518, 15 S. Ct. 559, 39 L.Ed. 517 should be limited to cases in which the void service of process attaches to all of the defendants. So construed, the rule is harmonious with the broad general rule that for an order, decree, or judgment to be final for appeal purposes

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