Lee v. Western Wool Processors, Inc.

• Decision Date: 31 December 1962
• Docket Number: No. 7004.,7004.
• Citation: 313 F.2d 13
• Parties: George A. LEE, Appellant, v. WESTERN WOOL PROCESSORS, INC., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

313 F.2d 13 (1963)

George A. LEE, Appellant, v. WESTERN WOOL PROCESSORS, INC., Appellee.

No. 7004.

United States Court of Appeals Tenth Circuit.

December 31, 1962.

William J. Hewitt, Denver, Colo. (Dayton Denious, Denver, Colo., on the brief), for appellant.

Robert B. Murray (of Murray & Hecox), Colorado Springs, Colo., for appellee.

Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.

LEWIS, Circuit Judge.

This action arose in the District Court for the District of Colorado as a claim by plaintiff-appellant upon a promissory note. Defendant-appellee did not question the alleged indebtedness on the note but pleaded the existence of counterclaims. Upon stipulation and motion for partial summary judgment, the court entered judgment for plaintiff in the amount of $17,262.50, staying execution pending determination of the counterclaims. As conditions of the stay order defendant was required to deposit with the clerk of the court the sum of $18,271.69 and to make further deposits of interest payments from time to time. The order, dated November 22, 1961, also provided:

"4. Within 10 days after receipt of statement from plaintiff\'s attorney, defendant shall reimburse plaintiff\'s attorney for all payments of court costs since date of judgment including clerk\'s fees, marshal\'s fees, sheriff\'s fees, recording fees and advertising, as shown by the statement."

"7. Should defendant fail to make any of the payments required by paragraph 4 * * *, then on application of plaintiff and without necessity of notice to defendant or further order of court, the Clerk of the Court shall pay plaintiff or plaintiff\'s attorney of record so much of the security deposits * * * as may be necessary to satisfy plaintiff\'s judgment in full, and shall pay to defendant or defendant\'s attorney of record any remaining balance of such security."

On January 3, 1962, plaintiff's attorney, in an ex parte application and upon representation that defendant had not met the conditions of paragraph 4, obtained the full amount of the money on deposit with the clerk. The check representing the amount of the deposit was signed by the clerk and the judge who had entered the order conditionally staying execution.

Several weeks later defendant learned that the deposit of monies had been paid to plaintiff and immediately sought an order requiring the return of the monies to the registry upon claim that there had been no violation of the provisions of paragraph 4 of the stay order. The motion was heard by a judge other than the judge who had entered the stay order but to whom the case had been then regularly assigned. Defendant's motion was granted and an order entered requiring plaintiff to forthwith re-deposit with the clerk all monies withdrawn. This appeal is taken from such order and our initial consideration must be directed to the question, raised by motion to dismiss, of whether this court is without jurisdiction to review the order in that it is not a final decision, 28 U.S.C.A. § 1291, nor within the purview of interlocutory determinations permitted under 28 U.S. C.A. § 1292.

Clearly the order appealed from has interlocutory aspects in its nature but plaintiff-appellant relies upon the liberal interpretation of the final judgment rule rendered by the United States Supreme Court in numerous cases, Forgay v. Conrad (1848) 6 How. 201, 12 L. Ed. 404; Thomson v. Dean (1868) 7 Wall. 342, 19 L.Ed. 94; Radio Station WOW v. Johnson (1945) 326 U.S. 120, 124, 65 S.Ct. 1475, 89 L.Ed. 2092; Swift & Co. Packers v. Compania Colombiana Del Caribe (1950) 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206. Defendant-appellee counters with language from those cases and others which appears to exclude from their operation orders for the payment of money into court or trust to abide the final decision on the merits of the case and cites particularly Louisiana National Bank v. Whitney (1887) 121 U.S. 284, 7 S.Ct. 897, 30 L.Ed. 961, wherein it is stated:

"* * * The court has not adjudicated the rights of the parties concerned. It has only ordered the fund into the registry of the court for preservation during the pendency of the litigation as to its ownership. Such an order it has always been held is interlocutory only and not a final decree. * * *" 121 U.S. at 285, 7 S.Ct. at 897, 30 L.Ed. 961.

But the view that the present order falls in the general description of funds impounded by the court pending litigation is an oversimplification of the fact situation. Here, the parties entered an agreement to withhold execution of a judgment already obtained subject to certain conditions. The plaintiff-appellant, regarding the agreement as breached by reason of the failure of the conditions, withdrew the funds in accordance with the remedy afforded by the stipulation. Defendant-ap...