First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & E. Co.

Decision Date24 May 1957
Docket NumberNo. 15549.,15549.
Citation245 F.2d 630
PartiesFIRST IOWA HYDRO ELECTRIC COOPERATIVE, F. A. E. Gillmor, Harry J. Strong, Carl J. Mitzner, Harry Imel, and P. H. Naber, Plaintiffs, and James D. France, and Xavier C. Nady, James R. McManus and Allan R. Shepherd, and each of them, as Attorneys of Record for Plaintiffs and in their own behalf, Appellants, v. IOWA-ILLINOIS GAS and ELECTRIC COMPANY, Iowa Power and Light Company, Iowa Southern Utilities Company, Interstate Power Company, Union Electric Power Company, Kansas City Power and Light Company, Iowa Electric Light and Power Company, Northwest Light and Power Company, Wisconsin Power and Light Company, Iowa Public Service Company, and Iowa Utilities Association, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

James R. McManus, Des Moines, Iowa (Allan R. Shepherd, Des Moines, Iowa, Xavier C. Nady, and James D. France, Tipton, Iowa, on the brief), for appellants.

Harry E. Wilmarth, Cedar Rapids, Iowa (Charles D. Waterman, W. B. Waterman, James J. Lamb, Charles D. Waterman Jr., Larned A. Waterman, Donald H. Sitz, Davenport, Iowa, Howard A. Steele, W. Z. Proctor, Harris N. Coggeshall, Llewellen E. Slade, Des Moines, Iowa, Robert Valentine, Robert W. Greenleaf, Centerville, Iowa, R. W. Colflesh, Maxwell A. O'Brien, Des Moines, Iowa, Clement F. Springer, Robert W. Bergstrom, Chicago, Ill., E. Marshall Thomas, Francis J. O'Connor, Dubuque, Iowa, Robert H. Walker, W. Logan Huiskamp, Joseph A. Concannon, Keokuk, Iowa, V. Craven Shuttleworth, Tyrrell M. Ingersoll, Cedar Rapids, Iowa, Byron L. Sifford, Sioux City, Iowa, Byron Spencer, Joseph J. Kelly, Jr., Kansas City, Mo., Earl Smith, Mason City, Iowa, Frederic M. Miller, Joseph Brody, Val Schoenthal and Sherwin J. Markman, Des Moines, Iowa, on the brief), for appellees.

Before WOODROUGH, VOGEL, and VAN OOSTERHOUT, Circuit Judges.

WOODROUGH, Circuit Judge.

This appeal in No. 15,549, has been taken to obtain reversal of the same judgment which we considered and have this day affirmed in First Iowa Hydro Electric Cooperative v. Iowa-Illinois Gas and Electric Company, No. 15,548, 8 Cir., 245 F.2d 613. The appellants herein include all those named as appellants in No. 15,548 and in addition, James D. France and Xavier C. Nady, James R. McManus and Allan R. Shepherd. The additional appellants are the attorneys who appeared for and represented the plaintiffs, First Iowa Hydro Electric Cooperative and its five members, F. A. E. Gillmor, Harry J. Strong, Carl J. Mitzner, Harry Imel, and P. H. Naber in the action for treble damages under the anti trust laws, which resulted in the judgment dismissing the action of the plaintiffs, the dismissal to operate as an adjudication on the merits. The four named attorneys undertake to prosecute this appeal from that judgment on behalf of the cooperative and the individuals who were the plaintiffs in the action in the District Court, and said attorneys also undertake to prosecute the appeal on their own behalf on the ground that they have an interest in the subject matter of the litigation by reason of the nature and effect of their contingent fee contract of employment, and the time, work and effort they have expended on the case. They filed a notice of appeal in the District Court to which they sign their names in one column as "attorneys of record for plaintiffs and in their own behalf as such attorneys of record," and in a parallel column they sign the notice of appeal again as "attorneys for plaintiffs-appellants."

The eleven corporations which were the defendants in the action in the District Court and are named as defendants-appellees here have moved to dismiss this appeal on the grounds that:

(1) The four attorneys here attempting to appeal in their own behalf were not parties to the record and judgment in the Court below and do not have the right to appeal under Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C.A.;
(2) they do not have as attorneys an interest in the subject matter of this lawsuit entitling them to appeal;
(3) and (4) all of the appellants except one individual have another appeal pending and this appeal is not authorized.

We have before us the records brought up in No. 15,548 and in No. 15,549, and the briefs and have heard the arguments of counsel and hold that the motion to dismiss this appeal should be sustained on each of the grounds presented.

(1) Under the Federal Rules of Civil Procedure, appeals cannot be taken from final judgments of the District Court otherwise than by parties to the judgments. Rule 73 provides that "a party may appeal from a judgment by filing with the district court a notice of appeal." The four attorneys were not parties and they neither asked nor obtained leave to become parties. We know of no appeal by non-parties. The question thus raised was reviewed in United States v. Seigle, 83 U.S.App.D.C. 88, 168 F.2d 143, 144-146, which case has been frequently cited with approval. Chairman of United States Maritime Comm. v. California Eastern Line, 92 U.S.App.D.C. 207, 204 F.2d 398, 403; In re Central States Electric, 4 Cir., 206 F.2d 70, 71; Commanding Officer, U. S. Army Base, etc. v. United States, 6 Cir., 207 F.2d 499, 501. The law was the same prior to the Federal Rules of Civil Procedure. In United States ex rel. State of Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 607, 61 L.Ed. 1222, the court said:

"With exceptions not even remotely applicable to a case such as we have here it has long been the law, as settled by this court, that `no person can bring a writ of error (an appeal is not different) to reverse a
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  • Flannery v. Prentice
    • United States
    • California Supreme Court
    • 13 d1 Agosto d1 2001
    ...Associates (D.C.Cir. 1986) 790 F.2d 145 (attorney cannot sue for fees under Truth in Lending Act) and First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & E. Co. (8th Cir.1957) 245 F.2d 630 (Clayton Act fees accrue only to party injured) with Rodriguez v. Taylor (3d Cir.1977) 569 F.2d 1231, ......
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    ...party, not his counsel.” Carpa, Inc. v. Ward Foods, Inc., 536 F.2d 39, 52 (5th Cir.1976); accord First Iowa Hydro Elec. Coop. v. Iowa–Illinois Gas & Elec. Co., 245 F.2d 630, 632 (8th Cir.1957); Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 88 (1st Cir.1970). Thus, the plaint......
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    ...attorney fee. 15 U.S.C. § 15. The right is accorded the injured party, not his counsel. First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 8 Cir. 1957, 245 F.2d 630, 632. While noting that the fee recovery was plaintiffs' personal right, the judgment below enforced an agreement,......
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    ...attorney's fees under 15 U.S.C. § 15 of course accrues to the plaintiff and not its attorneys. First Iowa Hydro Electric Coop. v. Iowa-Illinois Gas & Electric Co., 245 F.2d 630-32 (8th Cir. 1957), cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76 The standard applied by this court in r......
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