Elfman Motors, Inc. v. Chrysler Corp.
Decision Date | 19 December 1977 |
Docket Number | No. 77-2303,77-2303 |
Citation | 567 F.2d 1252 |
Parties | 1977-2 Trade Cases 61,795 ELFMAN MOTORS, INC., Appellant, v. CHRYSLER CORPORATION, Chrysler Motors Corporation, and Chrysler Leasing Corporation. |
Court | U.S. Court of Appeals — Third Circuit |
David Berger, Warren D. Mulloy, Steven M. Kramer, Berger & Montague, Philadelphia, Pa., for appellant.
Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellees, Chrysler Financial Corp. and Chrysler Credit Corp.
Robert S. Ryan, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees, Chrysler Corp., Chrysler Motors Corp., Chrysler Leasing Corp. and Chrysler Realty Corp.
Before WEIS and MARIS, Circuit Judges.
This is a suit brought by Elfman Motors, Inc. (herein Elfman) in the District Court for the Eastern District of Pennsylvania against Chrysler Corporation (herein Chrysler), Chrysler Motors Corporation (herein Motors), Chrysler Leasing Corporation (herein Leasing), Chrysler Financial Corporation (herein Financial), Chrysler Credit Corporation (herein Credit), and Chrysler Realty Corporation (herein Realty). On September 20, 1976, summary judgment was entered in favor of Financial and Credit on all counts of the complaint. Trial as to the remaining defendants began in February 1977. On February 28 the district court directed a verdict in favor of those defendants on certain of the claims asserted by Elfman in the complaint and the trial continued as to the remaining claims. The jury rendered its verdict against Chrysler and in favor of the remaining defendants, on which verdict judgment was entered on March 9, 1977. Motions for judgment n. o. v. and for a new trial were then made by Chrysler and on August 9, 1977 the district court granted Chrysler's motion for judgment n. o. v. On August 19, 1977, Chrysler's motion for a new trial was granted to be effective only in case the judgment n. o. v. was reversed on appeal.
However, in its subsequently filed Designation of Issues for Appeal and Designation of the Appendix Elfman mentioned the summary judgment entered in favor of Financial and Credit on September 20, 1976. Thereafter Financial and Credit filed a joint motion to dismiss the appeal as to them upon the ground that the notice of appeal does not designate the summary judgment entered in their favor. Chrysler, Motors, Leasing and Realty have filed a response to the motion stating that they do not contest it. Elfman has filed a memorandum in opposition and the motion is now before us for disposition.
Thus the jurisdiction of the court of appeals is invoked by the filing of a notice of appeal. Donovan v. Esso Shipping Company, 259 F.2d 65, 68 (3d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959). It is, of course, true that since, except in certain types of cases, only a final judgment or order is appealable, the appeal from a final judgment draws in question all prior non-final orders and rulings which produced the judgment. 9 Moore's Federal Practice, 755 (2d ed. 1975).
But in any case, the notice of appeal must conform to the requirement of Rule 3(c), F.R.App.P., that it "shall designate the judgment, order or part thereof appealed from." When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal. Spound v. Mohasco Industries, Inc.,534 F.2d 404, 410 (1st Cir.), cert. denied, 429 U.S. 886, 97 S.Ct. 238, ...
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