COMMUNICATIONS WKRS. OF AMER. v. United Tel. Co. of Ohio
| Decision Date | 07 February 1974 |
| Docket Number | No. 73-1840.,73-1840. |
| Citation | 491 F.2d 207 |
| Parties | COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Plaintiff-Appellee, v. UNITED TELEPHONE COMPANY OF OHIO, Defendant-Appellant, |
| Court | U.S. Court of Appeals — Sixth Circuit |
James Allan Smith, David S. Engle Smith, Currie & Hancock, Atlanta, Ga., on brief for defendant-appellant.
Metzenbaum, Gaines, Finley & Stern Co., L. P. A., by Melvin S. Schwarzwald, Mark A. Rock, Cleveland, Ohio, on brief for plaintiff-appellee.
Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
We have before us appellee's motion to dismiss an appeal brought by appellant, United Telephone Company of Ohio, from an order entered by the District Court on June 29, 1973. Appellee contends that said order was not the final order of the court within the meaning of 28 U.S.C. § 1291 (1970), and in any event it was not "a separate document" within the meaning of Rule 58(2) of the Federal Rules of Civil Procedure, and hence, that this court lacks jurisdiction of the appeal.
In the June 29 order the District Court specifically indicated, "Findings of fact and conclusions of law shall follow," and thereafter on July 19 a subsequent Memorandum Opinion and Order, signed by the District Judge, was filed.
Meantime, however, appellant had filed a Notice of Appeal, dated July 11, 1973, from the court's June 29 order.
Still later, the Clerk of the Court entered a judgment in compliance with the Memorandum Opinion and Order of July 19, which judgment was dated July 27, 1973. No subsequent Notice of Appeal was filed.
Under Rule 58 of the Federal Rules of Civil Procedure amended in 1963, a judgment must be "a separate document" which must in complex orders (Rule 58(2)) be approved as to form by the court. The purpose of the separate document provision is thus explained:
"This represents a mechanical change that would be subject to criticism for its formalism were it not for the fact that something like this was needed to make certain when a judgment becomes effective, which has a most important bearing, inter alia, on the time for appeal and the making of post-judgment motions that go to the finality of the judgment for purposes of appeal." 6A J. Moore, Federal Practice ¶ 58.044.2, at 58-161 (1973).
In this appeal neither the Order of June 29, 1973, nor the Memorandum Opinion and Order of July 19, 1973, was a judgment within the meaning of this rule, since neither was "a separate document" as opposed to "a decision by the court"...
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