Cleary Brothers v. Christie Scow Corporation
| Decision Date | 22 July 1949 |
| Docket Number | No. 239,Docket 21300.,239 |
| Parties | CLEARY BROTHERS v. CHRISTIE SCOW CORPORATION (AMERICAN PRESIDENT LINES, LIMITED, Impleaded). The CLEARY BROS. NO. 78. |
| Court | U.S. Court of Appeals — Second Circuit |
Christopher E. Heckman, New York City (Foley & Martin and Edward J. Ryan, New York City, on the brief), for appellant.
Joseph A. Calamari, New York City (Alexander & Ash and Sidney A. Schwartz, New York City, on the brief), for appellees.
Before SWAN and CHASE, Circuit Judges, and SMITH, District Judge.
The appellant, owner of the scow "Cleary Bros. No. 78," filed a libel against Christie Scow Corporation for damage to the scow while chartered by Christie Scow Corporation. Christie Scow Corporation impleaded American President Lines, Ltd., alleging charter and delivery in good condition to American President Lines, Ltd. and damage while chartered to American President Lines, Ltd., due to the negligence of American President Lines, Ltd.
Christie addressed certain interrogatories to libellant. Interrogatory #2 required the production of written reports of damage to the scow made to the libellant by its scow captain and any others, and a statement of the substance of any oral reports.
Interrogatory #4 required a statement of the date, time and place of damage.
The libellant excepted to the interrogatories. The Court, on April 12, 1948, overruled the exceptions to #2 and #4 among others, expanding #2 to require also statements furnished to libellant's proctors.
The libellant refused to answer #2 and partially answered #4, and on motion the Court, on June 14, 1948, ordered the libel to be, and stated that it was, dismissed, unless the proctors for the libellant should serve and file supplemental answers to Interrogatories #2 and #4 in accordance with the prior order of Court, within fourteen days next subsequent to the service of a copy of the order of June 14 with notice of entry upon the proctors for the libellant.1
The libellant failed to serve and file the supplemental answers to the interrogatories within the fourteen days allowed for compliance.2
Notice of appeal from the order of June 14, 1948 was filed July 6, 1948, and appeal was allowed July 7, 1948.
Respondent-appellee moves to dismiss the appeal because not from a final order.
Except where appeals from interlocutory decrees are permitted by statute, 28 U.S.C.A. § 1292, an appeal will not lie except from a final judgment, 28 U.S.C.A. § 1291. A case may not be brought up in fragments. Cory Bros. and Co., Ltd., v. U. S., 2 Cir., 47 F.2d 607. Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616.
Ordinarily, a dismissal with leave to the parties to reinstate the cause by amendment or some other action will be considered not final and, therefore, not appealable. Cory Bros. and Co., Ltd., v. U. S., supra. Western Electric Co., Inc., et al. v. Pacent Reproducer Corp. et al., 2 Cir., 37 F.2d 14.
Here, however, the time for compliance has passed, the District Court has, by the terms of the order, made it final if no compliance was had within the time limited, and has ordered that no further order for dismissal is to be considered necessary. The way for compliance is no longer open. No possibility, therefore, exists of later compliance and piecemeal appeal. We conclude, therefore, that the order is final and appealable. Cf. The Three Friends, 166 U.S. 1, 49, 17 S.Ct. 495, 41 L.Ed. 897.
The motion to dismiss the appeal is denied.
The principal question on the appeal is the validity of the Court's order requiring the production of statements given to the proctors for libellant in the preparation for trial. We think it plain that Admiralty Rules 31, 32 and 32C(b) (2), 28 U.S.C.A. are to be construed in harmony with Federal Rules of Civil Procedure, Rules 26, 30, 33 and 34, 28 U.S.C.A. Bank Line, Limited, v. U. S., 2 Cir., 163 F.2d 133. Their interpretation in Hickman v. Taylor, 329 U.S. 495, 511, 512, 67 S.Ct. 385, 91 L. Ed. 451, governs here. While the statements are not privileged in the ordinary sense, before the trial Court may require the production of statements of witnesses to counsel, some necessity for their production must be shown.3 Here there was no showing that the scow captain or any others who had made statements were dead or were unavailable for the taking of depositions.
The necessity required by the rules and by Hickman v. Taylor, supra, was not shown. Absent such a showing of necessity, allowance of the Interrogatory #2 as enlarged by the Court was an abuse of discretion on the part of the trial Court.
The orders of April 12, 1948 allowing the interrogatories and of June 14, 1948 dismissing the libel for failure to comply with the order of April 12, 1948 are reversed and the cause is remanded.
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