Kweskin v. Finkelstein

• Decision Date: 23 June 1955
• Docket Number: No. 11392.,11392.
• Citation: 223 F.2d 677
• Parties: Samuel KWESKIN v. Jay L. FINKELSTEIN.
• Court: U.S. Court of Appeals — Seventh Circuit

223 F.2d 677 (1955)

Samuel KWESKIN v. Jay L. FINKELSTEIN.

No. 11392.

United States Court of Appeals Seventh Circuit.

June 23, 1955.

Leo J. Spivack, Thomas Masuda, Chicago, Ill., for appellant.

Harry H. Krinsky, Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

DUFFY, Chief Judge.

This is an action for treble damages under § 205, Housing and Rent Act of 1947, as amended.¹ Plaintiff charged that defendant demanded of plaintiff the payment of $1,000 as a condition precedent to renting to him a certain apartment in the city of Chicago, Illinois, and that plaintiff paid such sum. The trial was to the Court.

At the threshold we are confronted with defendant's motion to dismiss the appeal on the ground that the appeal was not taken within the time limitations provided by the Federal Rules of Civil Procedure, 28 U.S.C.A. The judgment herein was entered October 21, 1954. Although the notice of appeal was not served and filed until December 14, 1954, a written motion for a "new trial or in the alternative to alter and amend the judgment" was served on defendant's attorney on October 28, 1954. This was within 10 days of the date of the entry of the judgment.

Rule 73, Federal Rules of Civil Procedure provides:

"(a) When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from unless a shorter time is provided by law, * * *. The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59."

Rule 59(b), Federal Rules of Civil Procedure provides:

"A motion for a new trial shall be served not later than 10 days after the entry of the judgment."

Rule 73 specifically provides that the running of the time for appeal is terminated by a timely motion made pursuant to certain enumerated rules. We see no significance in the fact emphasized by defendant, that Rule 73 refers to a timely motion made and the provision in Rule 59 that a motion for a new trial shall be served. However, defendant argues that a timely motion was not made because it was filed with the Clerk of the Court without any leave being granted therefor by the Court. Understandably, no citation of authority is given to support defendant's unique position. We believe that no such authority exists. We think defendant's claim that the appeal was too late, is entirely without merit.

The only finding of fact made by the Court in addition to the place of residence of each of the parties was that plaintiff failed to prove the material allegations of the complaint. Judgment was entered in favor of defendant.

The finding that plaintiff failed to prove the allegations of the complaint is not a finding of fact but is a conclusion of law. Under Rule 52(a), Federal Rules of Civil Procedure, it is the duty of the trial court to "find the facts specially and state separately its conclusions of law thereon." A fair compliance with this rule is mandatory. Bowles v. Russell Packing Co., 7 Cir., 140 F.2d 354, 355. Findings of fact on every material issue are a statutory requirement. Bank of Madison v. Graber, 7 Cir., 158 F.2d 137, 141. As stated by this Court in Dearborn Nat. Casualty Co. v. Consumers Petroleum Co., 164 F. 2d 332, 333, "There must be such subsidiary findings of fact as will support the ultimate conclusion reached by the court. Kelley et al. v. Everglades Drainage District, 319 U.S. 415, 420, 422, 63 S.Ct. 1141, 87 L.Ed. 1485."

We are reluctant to remand this or any other case in order to have the proper findings entered. We realize that such a remand will involve a delay and additional expense for each of the parties. Under Title 28 U.S.C.A. § 2106 we have the authority to affirm, modify or reverse the judgment, and we might consider the failure to make adequate findings of fact as non-reversible error if we can ascertain from the record that one party or the other is clearly entitled to judgment in his favor. We have carefully read all of the testimony and have considered the exhibits received into evidence.

Certain facts are not in dispute. Defendant was the beneficial owner of a certain apartment building in Chicago, which building and...