Fiske v. Wallace
| Decision Date | 27 November 1940 |
| Docket Number | 11807.,No. 11775,11775 |
| Parties | FISKE et al. v. WALLACE. WALLACE v. FISKE et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James C. Jones, Lon O. Hocker, Frank Y. Gladney, and Joseph H. Grand, all of St. Louis, Mo., for appellee-appellant S. Mayner Wallace.
Jesse T. Friday, of St. Louis, Mo., and E. J. Doerner, of Tulsa, Okla., for appellants-appellees Johanna F. Fiske, et al.
Oscar E. Buder and G. A. Buder, Jr., both of St. Louis, Mo., for appellants-appellees Arthur U. Simmons, administrator, etc., et al.
Before STONE, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
It appears from the records in these cases that S. Mayner Wallace has obtained a judgment, pursuant to findings of fact and conclusions of law made by the district court, for assessment of compensation for attorney's services against Johanna F. Fiske and others, and their appeal to this court for reversal of said judgment bears the above number, 11775. The final judgment was entered on March 30th, 1940. At the hour of 2:05 P. M. on April 9, 1940 (the tenth day after the entry of the final judgment) they filed their notice of appeal to this court, together with their cost bond on appeal. Their transcript of evidence and proceedings at the trial was filed in this court on July 1, 1940, and their statement of points relied on, July 2, 1940. Their appeal is on the call of cases for hearing at St. Louis, December 6, 1940.
At the hour of 4:10 P. M. of April 9, 1940, some two hours and five minutes after the filing of the notice of appeal by Johanna F. Fiske, et al., S. Mayner Wallace, the judgment plaintiff, filed his motion pursuant to Rule 52(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c,1 praying that the court's conclusions of law and judgment be amended and that the amount of the judgment be increased for reasons set forth in the motion. The motion was submitted and argued to the court and the court overruled the same on July 25, 1940. Four days later, on July 29, 1940, S. Mayner Wallace filed and caused to be served a notice of appeal to this court, together with cost bond, stating in the notice of appeal that the appeal was from the judgment entered on March 30, 1940. Thereafter, on July 30, 1940, he designated the portions of the record theretofore transmitted to this court upon the above described appeal of Johanna F. Fiske, et al., as his record on appeal, adding only the order of July 25, 1940, denying the motion to amend the conclusions of law and the judgment entered March 30, 1940. The appeal bears the above number, 11807, and is on the call of cases for hearing at St. Louis, December 6, 1940.
In the first appeal, No. 11775, Mr. Wallace has submitted a motion to dismiss on the ground, among others, that the appeal is premature because it was taken from a judgment that was not final. It was taken on the tenth day after the entry of final judgment and the point is made that at that time the judgment plaintiff still had the right accorded him by Rule 52(b) to file a motion to amend the judgment and also the right accorded by Rule 59(b) to file a motion for new trial. There was no motion for new trial, but there was, as stated, a motion to amend the judgment filed after the notice of appeal but within the time allowed by the rule. We think that the mere existence of plaintiff's right to proceed under Rule 52(b) or Rule 59(b) did not deprive the judgment defendants of the right to take an appeal accorded them by the statute. If plaintiff had exercised his right to move for amendment within time and before the appeal was taken, such action would have preserved jurisdiction in the district court and the time for taking an appeal would have been extended. But Rule 73(a) plainly provides that "When an appeal is permitted by law from a district court to a circuit court of appeals and within the time prescribed, a party may appeal from a judgment by filing with the district court a notice of appeal". The appellants herein had a right to appeal on April 9, 1940, prior to the filing of appellee's motion to amend, and they duly exercised such right by filing their notice of appeal which has been followed by taking the further necessary steps to secure a review of the judgment against them. The appeal was not ...
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