Makah Indian Tribe v. Moore

• Decision Date: 23 September 1950
• Docket Number: No. 2161.,2161.
• Parties: MAKAH INDIAN TRIBE et al. v. MOORE.
• Court: U.S. District Court — Western District of Washington

93 F. Supp. 105

MAKAH INDIAN TRIBE et al. v. MOORE.

No. 2161.

United States District Court W. D. Washington, N. D.

September 23, 1950.

J. Duane Vance and Bassett & Geisness, all of Seattle, Wash., for plaintiffs.

Smith Troy, Attorney General, T. H. Little, Assistant Attorney General, for defendant.

HALL, District Judge.

On December 30, 1949 the Honorable Lloyd L. Black, having theretofore tried the above-entitled case, announced his decision against the plaintiffs and for the defendant in an extended oral opinion. The opinion was transcribed by the reporter, copies given to counsel, and one copy was placed in the clerk's file. No formal findings of fact or conclusions of law or judgment were ever submitted to Judge Black, and consequently none were ever signed or filed before his sudden and untimely death on August 23, 1950.

The plaintiffs filed a motion for new trial under Fed.Rules Civ.Proc., rule 63, 28 U. S.C.A., on the ground that no findings of fact or conclusions of law were filed, and that thus there was no power existing in any other judge to sign the formal judgment in accordance with the decision announced by Judge Black.

The questions are whether or not the undersigned judge,¹ to whom the case has been formally and regularly transferred, has the power to perform the duty of signing the formal judgment in accordance with the announced decision of Judge Black; and if that is resolved in the affirmative, then whether or not the undersigned should do so in the exercise of sound judicial discretion.

Rule 63, Fed.Rules Civ.Proc., reads as follows:

"If by reason of death * * * a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial."

Rule 63 must be read in conjunction with Fed.Rules Civ.Proc., rule 52, which requires that "* * * the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment;" and also provides that "If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein."

It was decided by Judge St. Sure of the Northern District of California in Ten-O-Win Amusement Co. v. Casino Theatre, D. C.1942, 2 F.R.D. 242, that the provisions of rule 63 mandatorily required the signing of findings of fact and conclusions of law by the judge who tried the case, before any power vested in another judge to sign the judgment. But that case is clearly distinguishable for the reason that the portion of rule 52 which permits an opinion or memorandum to stand instead of findings of fact and conclusions of law did not appear therein in 1942 at the time of his decision. It was not added until 1947 and did not become effective until the early part of 1948. Moreover, the trial judge who had died had not rendered an opinion or memorandum but had merely entered a minute order directing judgment "upon the filing of approved findings of fact and conclusions of law."

No case involving the precise question decided by the appellate courts has been called to my attention or has been found on independent research.² But there have been many cases in the appellate courts where the sufficiency of a memorandum or opinion has been challenged as not being findings of fact and conclusions of law in compliance with the rule. In Kelley v. Everglades Drainage Dist., 319 U.S. 415, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485, the Supreme Court held the findings were not sufficient but said:

"Nor do we intimate that findings must be made on all of the enumerated matters or need be made on no others; the nature of the evidentiary findings sufficient and appropriate to support the court's decision as to fairness or unfairness is for the trial court to determine in the first instance in the light of the circumstances of the particular case. We hold only that there must be findings, stated either in the court's opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion."

In Burnham Chemical Co. v. Borax Consolidated, 1948, 170 F.2d 569, 574, the 9th Circuit had the following to...