David v. District of Columbia, 10557.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 88 US App. DC 92,187 F.2d 204
• Docket Number: No. 10557.,10557.
• Parties: DAVID v. DISTRICT OF COLUMBIA.
• Decision Date: 14 December 1950

88 US App. DC 92, 187 F.2d 204 (1950)

DAVID
v.
DISTRICT OF COLUMBIA.

No. 10557.

United States Court of Appeals District of Columbia Circuit.

Argued October 3, 1950.

Decided December 14, 1950.

Mr. Richard W. Galiher, Washington, D. C., with whom Messrs. Julian H. Reis, William E. Stewart, Jr., and William H. Clarke, all of Washington, D. C., were on the brief, for appellant.

Mr. Chester H. Gray, Principal Asst. Corporation Counsel, D. C., Washington, D. C., with whom Messrs. Vernon E. West, Corporation Counsel, D. C., and Milton D. Korman, Assistant Corporation Counsel, D. C., Washington, D. C., were on the brief, for appellee.

Before CLARK, BAZELON, and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The appellant, Edward G. David, was one of several defendants in an action brought to recover damages for personal injuries resulting form a fall in front of a building in which David operated a restaurant on the basement level. Under Rule 14, Fed.R.Civ.P., the District Court granted a timely motion by David to bring in the District of Columbia as a third-party defendant. In his third-party complaint David claimed that the alleged injuries had occurred on property belonging to the District of Columbia, that the District was obligated to control and maintain this property in a safe condition, and that the District would be responsible in whole or in part for whatever liability David might sustain as a result of this action. It is from the dismissal of this third-party complaint that this appeal is taken. The other claims involved in the action remained for trial in the District Court.

While neither party denies the existence of jurisdiction to review the order of the District Court on appeal, this court, sua sponte, raised the question during oral argument in view of the fact that in dismissing the third-party complaint, the District Court did not (1) make an express determination that there is no just reason for delay, nor (2) expressly direct the entry of judgment on the third-party claim. Amended Rule 54(b)¹ requires that these

187 F.2d 205

two steps must be taken before a final judgment may be entered upon one or more but less than all of the claims in an action. With the limited exception of certain interlocutory decisions described in § 1292 of the Judicial Code, which is not here applicable, this court has jurisdiction to review judgments of the District Court only when they are final. 28 U.S.C.A. § 1291. The parties were permitted to file supplemental memoranda regarding the effect of rule 54(b) upon the issue of finality

On this point appellant contends, in effect, that any order which would have been final and appealable prior to the time amended Rule 54(b) took effect on March 19, 1948, retains this same appealable status after that date despite the failure of the District Court to follow the requirements of the amended Rule. In support of this argument appellant cites several cases decided before the amended Rule took effect. He relies principally upon Reeves v. Beardall, 1942, 316 U.S. 283, 62 S.Ct. 1085, 1087, 86 L.Ed. 1478. Under the doctrine of the Reeves case a prior disposition of one of several claims joined in an action was both final and appealable if the adjudicated claim arose out of a "wholly separate and distinct" transaction from the remaining claims.

Assuming, without deciding, that appellant is correct in his contention that this order would be a final one under the Reeves doctrine, we do not think that case is determinative of the present issue. It was decided before March 19, 1948; the effect of the amendment to Rule 54(b) was not there in question. In discussing that amendment in his Commentary, Professor Moore states that, "The Fifth, Sixth, and Eighth Circuits have all recognized that this represents a change in the law, and that an order which would have been final under original Rule 54(b) is not final under amended Rule 54(b), where the district court does not make the express determination and does not expressly direct entry of judgment as...