Fleming v. Munsingwear, 13391.

Citation162 F.2d 125
Decision Date19 June 1947
Docket NumberNo. 13391.,13391.
PartiesFLEMING, Administrator, Office of Temporary Controls, v. MUNSINGWEAR, Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Samuel Rosenwein, of Washington, D. C. (George Moncharsh, David London, Albert M. Dreyer, and George E. Leonard, all of Washington, D. C., on the brief), for appellant.

John M. Palmer, of Minneapolis, Minn. (F. H. Stinchfield and Stinchfield, Mackall, Crouse & Moore, all of Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellant's predecessor seeking injunctional relief under Section 205(a) of the Emergency Price Control Act, as amended, 50 U.S.C. A.Appendix, § 925(a), and for statutory damages under Section 205(e) of the same Act. The complaint alleged two distinct causes of action, one for the recovery of damages and the other for a permanent injunction. The cause of action seeking injunctional relief alone was tried resulting in findings which determined all the controverted issues of fact in favor of appellee and in conclusions of law to the effect that appellant was not entitled to equitable relief. On the findings and conclusions so made, filed and entered the court entered judgment of dismissal and this appeal followed. The parties will be referred to as they appeared in the trial court.

Defendant has filed a motion to dismiss the appeal or to affirm the judgment on the grounds that appellant's statement of points failed to attack any specific ruling or action of the trial court with respect to which error is charged, and that appellant's points constitute an attack only upon the trial court's opinion.

In seeking reversal plaintiff in his brief sets forth his points relied upon as follows: "1. The District Court erroneously dismissed the suit, since, under the proper construction of Maximum Price Regulation No. 221, as amended, defendant had not made sales before February 10, 1942, by written order or contract for the fall and winter season of 1942, nor had it had a written or printed price list for the fall and winter season of 1942, which was distributed generally to its customers on or before February 10, 1942. 2. The District Court misconstrued Maximum Price Regulation No. 221, as amended, in holding that the term `for the fall and winter season of 1942' refers to the time when garments were to be resold by retailers or worn by consumers, instead of holding that the term refers to the manufacturer's selling season. 3. The District Court erroneously concluded that defendant's price lists, identified as plaintiff's exhibits I and J, were distributed generally to defendant's customers or prospective customers on or before February 10, 1942, within the purview of Maximum Price Regulation No. 221, as amended. 4. The District Court erroneously concluded that defendant at all times complied in all material respects with Maximum Price Regulation No. 221, as amended." Other than the foregoing, the brief contains no statement of points relied upon and intended to be urged on appeal. Rule 11(b) Fourth of this court provides that appellant's brief shall contain, among other things, "A separate and particular statement of each assignment of error (in criminal cases), or of each point relied upon (in civil cases), intended to be urged, with the record page thereof." Although the court entered detailed findings of fact separately paragraphed and numbered, and likewise entered its conclusions of law on the facts so found, the statement of points relied upon challenges no finding of fact nor conclusion of the law, nor alleged error in the admission or rejection of evidence, and does not direct this court's attention to any specific ruling or action of the trial court. Referring to this rule of court, in Cohen v. United States, 8 Cir., 142 F.2d 861, 863, we said:

"The purpose in requiring that appellant's brief contain a separate and particular statement of each point relied upon intended to be urged, is to point out to the appellate court the specific ruling or action of the trial court which is challenged as erroneous and to limit the presentation in the appellate court to the matters in the specifications as stated in the brief."

See, also: New York Casualty Co. v. Young Men's Christian Ass'n., 8 Cir., 119 F.2d 387; American Insurance Co. v. Scheufler, 8 Cir., 129 F.2d 143; E. R. Squibb & Son v. Mallinckrodt Chemical Works, 8 Cir., 69 F.2d 685; Hard & Rand v. Biston Coffee...

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16 cases
  • United States v. Munsingwear
    • United States
    • United States Supreme Court
    • November 13, 1950
    ...ground that the case had become moot. The Court of Appeals granted the motion and dismissed the appeal for mootness. Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125. Respondent then moved in the District Court to dismiss the treble damage actions on the ground that the unreversed judgmen......
  • Alvarez v. Smith
    • United States
    • United States Supreme Court
    • December 8, 2009
    ...mootness because that action—a commodity being decontrolled by Executive Order—was basically unrelated); see also Fleming v. Munsingwear, Inc., 162 F.2d 125, 127 (C.A.8 1947). For these reasons, we believe that the presence of this federal case played no significant role in the termination ......
  • Alvarez v. Smith
    • United States
    • United States Supreme Court
    • December 8, 2009
    ...because that action—a commodity being decontrolled by Executive Order—was basically unrelated); see also Fleming v. Munsingwear, Inc., 162 F.2d 125, 127 (C.A.8 1947). For these reasons, we believe that the presence of this federal case played no significant role in the termination of [558 U......
  • Smith v. American Guild of Variety Artists
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 13, 1966
    ...67 S.Ct. 982, 91 L.Ed. 1328; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 80 L.Ed. 138; Fleming v. Munsingwear, 8 Cir., 162 F.2d 125, 127; Anderson v. Federal Cartridge Corp., 8 Cir., 156 F.2d 681, 683; Cohen v. United States, 8 Cir., 142 F.2d 861, 863; 5 Am.Ju......
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