Firchau v. Diamond National Corporation, No. 19526.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtCHAMBERS, HAMLEY and BROWNING, Circuit
Citation345 F.2d 269
PartiesAlbert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants, v. DIAMOND NATIONAL CORPORATION, a Delaware corporation, Appellee.
Decision Date26 April 1965
Docket NumberNo. 19526.

345 F.2d 269 (1965)

Albert J. FIRCHAU, Emma Firchau Sallender, both individually, and Albert Firchau and Emma Firchau Sallender, as Trustees and as Assignees of Western Oregon Trucking Corporation, Inc., a dissolved Oregon corporation, Firchau Logging Co., Inc., a Nevada corporation, and Independent Loggers and Contractors, Inc., an Oregon corporation, Appellants,
v.
DIAMOND NATIONAL CORPORATION, a Delaware corporation, Appellee.

No. 19526.

United States Court of Appeals Ninth Circuit.

April 26, 1965.


345 F.2d 270

Clarence H. Pease, Sacramento, Cal., for appellants.

Arthur R. Albrecht, Craig McAtee, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for appellee.

Before CHAMBERS, HAMLEY and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge:

On January 24, 1963, Albert J. Firchau and others commenced this action against Diamond National Corporation (Diamond) to recover damages in the sum of $1,500,000 for breach of contract. The action was filed in the Superior Court of the State of California in and for the County of Tehama, and was removed to the federal district court because of diversity of citizenship. On motion of Diamond the complaint, in which one claim was asserted, was dismissed on October 17, 1963.

A first amended complaint, purporting to state two claims, was filed on November 21, 1963. The first claim was in general similar to that stated in the original complaint, and sought relief in the same amount. The second claim was stated in the alternative and sought damages in the sum of $1,297,500.

On motion of Diamond, the district court also dismissed the first amended complaint on June 25, 1964. On July 21, 1964, plaintiffs filed a notice of appeal "* * * from the Order dismissing the second claim as pleaded in the first amended complaint. * * *" The court entered a final judgment dismissing the action on July 24, 1964. No further notice of appeal was filed.

Diamond has moved to dismiss the appeal for lack of jurisdiction in this court. The company argues that the order of June 25, 1964, dismissing the first amended complaint, is not an appealable order; that Firchau's purported appeal therefrom is therefore ineffectual; and that no appeal was taken from the subsequently-entered judgment dismissing the action.

An order which dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Marshall

345 F.2d 271
v. Sawyer, 9 Cir., 301 F.2d 639, 643. The special circumstances under which this court will regard such an order as final, and therefore appealable, must be such as to make it clear that the district court determined that the action could not be saved by any amendment of the complaint. Marshall v. Sawyer, supra, at 643

Assuming such circumstances did not exist in this case, the question remains whether the notice of appeal, filed on July 21, 1964, may not be regarded as running against the subsequently-filed final judgment of dismissal.

This court is extremely liberal in accepting as sufficient for the purposes of a notice of appeal informally drawn and improperly labeled documents. Poe v. Gladden, 9 Cir., 287 F.2d 249, 251; Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282. In this spirit, we regard the notice of appeal here in question as directed to the final judgment of dismissal, overlooking as a technical defect not affecting substantial rights, the premature filing of that notice.

The Supreme Court of the United States similarly viewed a notice of appeal filed before entry of the final decision in a criminal proceeding. See Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3. It did so in view of Rule 52(a), Federal Rules of Criminal Procedure, reading: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Since a substantially similar provision is contained in Rule 61, Federal Rules of Civil Procedure, we think the rationale of Lemke supports our view as expressed above.1 The motion to dismiss the appeal is denied.

On the merits, Firchau questions only the dismissal of the second claim of the first amended complaint, making no issue of the dismissal of the first claim stated in that pleading.

In his second claim Firchau alleged that he and Diamond, during the winter of 1960 to 1961, entered into an oral contract wherein Firchau agreed to cut and deliver to Diamond's Red Bluff or other plants, forty-five thousand M board feet of logs for a minimum price of $22.75 per thousand. Firchau further alleged that, on or about April 1, 1961, Diamond anticipatorily breached that oral contract, to Firchau's damage in the amount of $1,297,500.

In dismissing this claim for failure to state a claim on which relief can be granted the district court held that the claim is barred by California Code of Civil Procedure § 339(1). That statute provides that an action upon a contract not founded upon an instrument in writing must be brought within two years after the accrual of the cause of action. According to the allegations of the first amended complaint, the cause of action on the second claim accrued on April 1, 1961. The district court held that the action upon that claim was not brought until November 21, 1963, when the first amended complaint was filed.

Firchau argues here, however, as he did in the district court, that the second claim relates back to the date of the original complaint, and since he filed the latter pleading on January 24, 1963, which was less than two years after the accrual of the cause of action on the second claim, the California two-year statute of limitations does not bar that claim.

Consideration of this argument requires us to compare the allegations contained in the original complaint with those set out in the second claim of the first amended complaint. See Sidebotham v. Robison, 9 Cir., 216 F.2d 816, 823.

In the original complaint Firchau alleged that, in February, 1959, he and Diamond entered into an oral contract having a term of four years. This contract, Firchau alleged, pertained to timber operations on Diamond's lands in Shasta and Tehama Counties, California, including logging, road construction, and

345 F.2d 272
the hauling of logs to Diamond's plant at Red Bluff, California, and elsewhere. Under the terms of this so-called "Master Agreement," plaintiff averred, he was to log forty-five thousand M board feet each year from forest areas then generally designated, but to be thereafter specifically designated. Under this agreement, Firchau alleged, he was to haul these forest products to Diamond's plants and, during the first year he was to receive from twenty to twenty-two dollars per thousand net Scribner Decimal C scale for the logs, depending on the named area from which they were taken

Firchau further alleged in his original complaint that, under the master agreement: (1) Firchau would build logging roads in such areas and for such prices as would be determined by the parties from...

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47 practice notes
  • Richerson v. Jones, No. 76-1762
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Marzo 1977
    ...358 (9th Cir. 1967); Ruby v. Secretary of United Page 923 States Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965); 9 J. Moore, Federal Practice P 204.14 at 982. 6a Here, Richerson has never claimed that his rights would be prejudiced if we ......
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 30 Octubre 2019
    ...defects in appeals, allowing premature appeals to ripen absent any prejudice to the appellee. In Firchau v. Diamond Nat’l Corp. , 345 F.2d 269, 271 (9th Cir. 1965), we interpreted a plaintiff’s premature appeal of a non-final order dismissing only a single claim as directed at the ensuing f......
  • Local 783, Allied Industrial Wkrs. v. General Electric Co., No. 72-1260.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 5 Enero 1973
    ...of the additional cost to the opposing party would, in proper circumstances, be reasonable conditions. Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). The circumstances may even warrant, as was the case in Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev'd on other ground......
  • Hutchinson v. Hutchinson
    • United States
    • Appeals Court of Massachusetts
    • 29 Noviembre 1978
    ...Practice, par. 204.14 (2d ed. 1975). See Keohane v. Swarco, Inc., 320 F.2d 429, 432 (6th Cir. 1963), and Firchau v. Diamond Natl. Corp., 345 F.2d 269, 271 (9th Cir. 1965). Rather, we treat the notice of appeal as "an effective, although inept, attempt" to appeal from the judgment in the act......
  • Request a trial to view additional results
49 cases
  • Martinez v. Barr, No. 17-72186
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 30 Octubre 2019
    ...defects in appeals, allowing premature appeals to ripen absent any prejudice to the appellee. In Firchau v. Diamond Nat’l Corp. , 345 F.2d 269, 271 (9th Cir. 1965), we interpreted a plaintiff’s premature appeal of a non-final order dismissing only a single claim as directed at the ensuing f......
  • Richerson v. Jones, No. 76-1762
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Marzo 1977
    ...358 (9th Cir. 1967); Ruby v. Secretary of United Page 923 States Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965); 9 J. Moore, Federal Practice P 204.14 at 982. 6a Here, Richerson has never claimed that his rights would be prejudiced if we ......
  • Local 783, Allied Industrial Wkrs. v. General Electric Co., No. 72-1260.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 5 Enero 1973
    ...of the additional cost to the opposing party would, in proper circumstances, be reasonable conditions. Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). The circumstances may even warrant, as was the case in Parissi v. Foley, 203 F.2d 454 (2d Cir. 1953), rev'd on other ground......
  • Hutchinson v. Hutchinson
    • United States
    • Appeals Court of Massachusetts
    • 29 Noviembre 1978
    ...Practice, par. 204.14 (2d ed. 1975). See Keohane v. Swarco, Inc., 320 F.2d 429, 432 (6th Cir. 1963), and Firchau v. Diamond Natl. Corp., 345 F.2d 269, 271 (9th Cir. 1965). Rather, we treat the notice of appeal as "an effective, although inept, attempt" to appeal from the judgment ......
  • Request a trial to view additional results

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