Duryea v. Third Northwestern Nat. Bank of Minneapolis

• Decision Date: 15 May 1979
• Docket Number: No. 78-1740,78-1740
• Citation: 602 F.2d 809
• Parties: Willis M. DURYEA, Jr., Appellant, v. The THIRD NORTHWESTERN NATIONAL BANK OF MINNEAPOLIS, a national banking association, Bruce Winslow, John Doe and Mary Roe, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 809

602 F.2d 809

Willis M. DURYEA, Jr., Appellant, v. The THIRD NORTHWESTERN NATIONAL BANK OF MINNEAPOLIS, a national banking association, Bruce Winslow, John Doe and Mary Roe, Appellees.

No. 78-1740.

United States Court of Appeals Eighth Circuit.

Submitted April 18, 1979.

Decided May 15, 1979.

Paul D. Nelson (on brief), Berg, Hacking & Berg, Minneapolis, Minn., argued, for appellant.

Norman R. Carpenter, Minneapolis, Minn. (argued), and Robert L. Schnell, Jr., Minneapolis, Minn., on brief, for appellees.

Before ROSS, STEPHENSON and HENLEY, Circuit Judges.

PER CURIAM.

This is an appeal in a civil case from the findings and judgment of the district court ¹ in favor of the defendant-counterclaimant, The Third Northwestern National Bank of Minneapolis, in the amount of its loan, plus attorney fees and costs, against plaintiff-appellant, Willis M. Duryea, Jr. The two primary issues raised on this appeal are whether defendant bank violated the Bank Holding Company Act of 1956 in making the loans to plaintiff, and whether the trial court's award of attorney fees and costs was proper.

Upon this court's own motion we consider the order of reference to the magistrate and the action taken by the district court in entering judgment upon the magistrate's findings to be improper and remand for further proceedings.

Pursuant to written stipulation and consent of the parties the district court referred this matter to the magistrate as follows:

IT IS ORDERED that trial of the above-entitled action be before Magistrate Robert G. Renner, and that any appeal be directly to the Court of Appeals for the Eighth Circuit from the judgment entered by this court consistent with and pursuant to the Findings of Fact, Conclusions of Law, and Recommended Order for Judgment of the Magistrate, and without appeal to the undersigned.

The order of reference "without appeal to the undersigned" is improper because it is well established in this circuit that this court is without jurisdiction to hear appeals directly from a decision of a United States Magistrate. Swanson & Youngdale, Inc. v. Seagrave Corp., 542 F.2d 1008 (8th Cir. 1976); Reciprocal Exch. v. Noland, 542 F.2d 462 (8th Cir. 1976); United States v. Haley, 541 F.2d 678 (8th Cir. 1974).

Furthermore, the final order is deficient because it fails to indicate the court considered issues of law. After trial the magistrate filed Findings of Fact, Conclusions of Law, and Recommended Order for Judgment. The district court, in ordering that the clerk enter judgment dismissing plaintiff's complaint and enter judgment for the defendant-counterclaimant bank against plaintiff Duryea, stated: "The court adopts the findings of the Magistrate and accepts the recommendation contained therein." The district court did not indicate that it had considered or adopted the magistrate's conclusions of law. Compare Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8th Cir. 1977).

28 U.S.C. § 636(b)(2), pursuant to which the stipulation and order of reference to the magistrate was entered, provides in part as follows:

A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts.

It is clear from the...