Markham v. Holt, 22927.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRIVES, THORNBERRY and AINSWORTH, Circuit
Citation369 F.2d 940
PartiesWatson W. MARKHAM, Appellant, v. James HOLT, Appellee.
Docket NumberNo. 22927.,22927.
Decision Date13 December 1966

369 F.2d 940 (1966)

Watson W. MARKHAM, Appellant,
James HOLT, Appellee.

No. 22927.

United States Court of Appeals Fifth Circuit.

December 13, 1966.

369 F.2d 941

Philip D. Beall, Pensacola, Fla., for appellant.

Robert P. Gaines, Pensacola, Fla., for appellee.

Before RIVES, THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from an order of the district court granting a motion for summary judgment on the issue of liability in a personal injury action arising out of a collision involving appellee's automobile and a railroad motor car operated by appellant. Appellant instituted this diversity action against appellee for injuries sustained in the accident, and appellee filed a counterclaim to recover damages to his automobile. On the basis of depositions of both parties and various exhibits stipulated into evidence, appellee moved for summary judgment on appellant's claim of liability, and, similarly, appellant moved for summary judgment on appellee's counterclaim. The trial court entered an order granting both motions on the ground that each party was barred from recovery because of his contributory negligence — appellant, for failing to maintain a proper lookout and for failing to give a warning signal prior to crossing that portion of the railway tracks intersecting the highway, and appellee, for failing to maintain a proper lookout. On this appeal, appellant contends that the trial court erred in granting appellee's motion for summary judgment.1


At the outset we must consider the contention that the appeal in this case should be dismissed because notice of appeal was filed prior to the entry of the final judgment. The opinion and order of the trial court granting both motions for summary judgment was filed July 16, 1965. Appellant filed his notice of appeal August 6, 1965, designating the "final order and/or judgment entered in the above cause on July 16, 1965." Four days thereafter, on August 10, 1965, a separate document embodying the final judgment and signed by the trial judge was filed. Under these circumstances, appellee asserts that since 28 U.S.C. § 1291 limits our appellate jurisdiction to final decisions of the district courts, the appeal before us must be dismissed as premature because at the date appellant

369 F.2d 942
filed his notice of appeal no final judgment "set forth on a separate document"2 had been entered from which to prosecute an appeal.3 Fully cognizant of the statutory limitations placed upon our appellate jurisdiction, we are nevertheless convinced that to entertain the instant appeal is not to exceed the permissible bounds of our jurisdictional powers

This Court has consistently adhered to the policy of exercising all proper means to prevent the loss of valuable rights when the validity of an appeal is challenged not because something was done too late, but rather because it was done too soon. Avery v. Fischer, 5th Cir. 1966, 360 F.2d 719, 723; Carter v. Campbell, 5th Cir. 1960, 285 F.2d 68; Bates v. Batte, 5th Cir. 1951, 187 F.2d 142, 143, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616.4 The basic policy considerations underlying the limitation that a final judgment is a prerequisite to appealability are the excessive inconvenience and costs occasioned by piecemeal review on the one hand, and the danger of denying justice by needless delay on the other. Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 152-153, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 203; In re Forstner Chain Corp., 1st Cir. 1949, 177 F.2d 572, 575. The purpose of requiring the filing of a timely notice of appeal is to advise the opposing party that an appeal is being taken from a specific judgment, and such notice should therefore contain sufficient information so as not to prejudice or mislead the appellee. Wilson v. Southern Ry., 5th Cir. 1945, 147 F.2d 165. The assumption of jurisdiction in the instant case, we are convinced, does not violate the spirit of the final-judgment rule nor the notice-of-appeal requirements. This Circuit has long been committed to the rule that where, as in the instant case, it is obvious that the overriding intent was effectively to appeal, and no prejudice will result to the appellee, we are justified in treating the appeal as from a final judgment. See United States v. Stromberg, 5th Cir. 1955, 227 F.2d 903, 904; Atlantic Coast Line Ry. v. Mims, 5th Cir. 1952, 199 F.2d 582, 583, accord, Donovan v. Esso Shipping Co., 3d Cir. 1958, 259 F.2d 65, cert. denied, 1959, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572. Here, the final judgment embodying the trial court's order was filed four days subsequent to appellant's notice of appeal. This...

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