Childs v. Kaplan, 71-1717.
| Decision Date | 03 October 1972 |
| Docket Number | No. 71-1717.,71-1717. |
| Citation | 467 F.2d 628 |
| Parties | Kenneth CHILDS, Appellee, v. Harvey M. KAPLAN and Harvey Tessler, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Harvey Tessler, Clayton, Mo., pro se.
Myron Gollub, St. Louis, Mo., for appellee.
Before VOGEL and VAN OOSTERHOUT, Senior Circuit Judges, and ROSS, Circuit Judge.
VAN OOSTERHOUT, Senior Circuit Judge.
Harvey M. Kaplan and Harvey Tessler have taken timely appeals from the order of the District Court, filed October 19, 1971, requiring each of them to answer interrogatories propounded within thirty days from October 19, 1971. Kaplan has filed no brief in support of his appeal, nor has he taken any steps to prosecute the appeal beyond filing the notice of appeal. Kaplan's appeal could probably be dismissed for want of prosecution pursuant to FRAP Rule 31(c) and our Rule 13. However, we have chosen not to do so as the issues raised on both appeals are identical. Tessler has filed a brief in support of his appeal. Appellee has filed no brief and has by letter advised the court that he has elected not to file a brief. We note our disapproval of such practice. All parties have waived oral argument.
The threshold issue presented by these appeals is whether the order appealed from is an appealable order. We of course are required to satisfy ourselves of our appellate jurisdiction in all cases, including those where the jurisdictional issue is not raised by the parties.
This court has only such jurisdiction as is conferred upon it by statute. Jurisdiction over appeals from the District Court is generally limited to the review of final judgments. 28 U.S.C. § 1291. Certain exceptions are contained in § 1292 but none of such exceptions is applicable here.
The judgment appealed from is not a final judgment. A brief summary of the facts is required to demonstrate this. Plaintiff appellee obtained a judgment against Kaplan and Tessler in the District Court for $23,437.68 on June 15, 1970, which judgment has become final. The judgment has not been satisfied. Plaintiff on August 24, 1970, propounded identical interrogatories to each defendant pursuant to Rule 33, Fed.R.Civ.P., aimed to discovery of assets of the defendants out of which to satisfy the judgment. No answers having been filed, plaintiff on May 20 filed a motion to compel answers to interrogatories. Such motion was granted on May 27, 1971. An order was entered requiring answers to the interrogatories. On June 28, each defendant filed a purported answer to the interrogatories which in substance gave his name and address and noted his refusal to answer the remaining interrogatories on the grounds that the answers would violate his Fifth Amendment rights protecting him against self-incrimination. Defendants filed no objections to the interrogatories, nor was any request made for a protective order pursuant to Rule 26(c), Fed.R.Civ.P.
Plaintiff on July 14, 1971, filed "Motion to Compel Answers to Interrogatories or, in the Alternative, an Order to Hold Defendant and Judgment Debtor in Contempt of Court." Rule 37(a) (2), Fed.R.Civ.P., provides for such a motion and sanctions for failure to make discovery, including contempt, are provided by Rule 37(b). The court, after considering the briefs submitted by the parties, entered the order appealed from requiring defendants to answer the interrogatories. In making such order, the court made the finding "there is nothing in the interrogatories which in the opinion of the court would tend to incriminate the defendants by answering the interrogatories." In our view, such order does not constitute a final order.
The question of what sanctions, if any, should be imposed remains open. Defendants still have an opportunity in a proceeding to find them in contempt of court for failure to obey the order or in an application for a protective order to show that answers to the interrogatories will in fact tend to violate their Fifth Amendment rights under the standards set out in Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951...
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...a preliminary order such as here involved is not a final appealable order. Duffy v. Dier, 465 F.2d 416 (8th Cir. 1972); Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1972); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1......
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...Reversal is more likely, although still unusual, when the trial court has erroneously denied or limited discovery. In Childs v. Kaplan, 467 F.2d 628 (8th Cir.1972), two judgment debtors attempted to appeal from an order requiring them to answer interrogatories regarding their assets. In hol......
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