Nichols-Morris Corporation v. Morris

• Decision Date: 25 May 1960
• Docket Number: Docket 25948.,No. 299,299
• Citation: 279 F.2d 81
• Parties: NICHOLS-MORRIS CORPORATION, Plaintiff-Appellant, v. Robert E. MORRIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

279 F.2d 81 (1960)

NICHOLS-MORRIS CORPORATION, Plaintiff-Appellant, v. Robert E. MORRIS, Defendant-Appellee.

No. 299, Docket 25948.

United States Court of Appeals Second Circuit.

Argued May 3, 1960.

Decided May 25, 1960.

Melvin D. Kraft and Klein & Opton, New York City, for plaintiff-appellant.

Alvin M. Stein, Parker, Chapin & Flattau, New York City, Samuel M. Chapin, New York City, of counsel, for defendant-appellee.

Before HAND and FRIENDLY, Circuit Judges, and JAMESON, District Judge.

HAND, Circuit Judge.

This is an appeal from an order of Judge Kaufman in the Southern District of New York that denied the plaintiff's motion for an order extending its time for sixty days after the entry of a judgment denying part of the damages claimed by the plaintiff for breach by the defendant of his fiduciary duty. Judge Weinfeld, who tried the case without a jury, on June 24, 1959, D.C., 174 F. Supp. 691, found the defendant liable to the plaintiff for only $23,500 out of a much larger sum demanded and dismissed a claim for an injunction. On July 30 the plaintiff's attorney served on the defendant's attorney notice that a judgment of which it enclosed a copy would be presented "for settlement and signature" to Judge Weinfeld on August 6th; and on July 31, the defendant's attorneys served on the plaintiff's attorneys a similar notice enclosing its own counterproposal. On August 18 Judge Weinfeld signed a judgment and the clerk entered it on the same day, and endorsed the entry upon it. He sent notice of entry to the defendant but none to the plaintiff, apparently because he did not know that the plaintiff's much larger claim had not been allowed. The plaintiff concedes that the "managing attorney," Helmke, of plaintiff's firm on August 20 saw a notation in the Law Journal that an order had been signed, went to the clerk's office and saw the judgment "shortly after it was signed," with the clerk's endorsement upon it that it had been entered on the 18th. However, he did nothing towards serving a notice of appeal. "In or about the first week of September within two weeks after the entry of judgment," the attorney who had tried the case for the defendant telephoned the plaintiff's attorneys and asked a senior member of the firm whether "the plaintiff intended to appeal from the judgment." He added that if so the defendant would also appeal, but if the plaintiff did not appeal the defendant "would have to make arrangements to obtain funds necessary to satisfy the judgment. If on the other hand plaintiff intended to appeal * * * it was the intention of defendant to defer the making of such arrangements until after the appeal was decided." The plaintiff's attorney answered that the plaintiff had not yet decided whether to appeal. On September 14 the defendant's attorney again telephoned the same plaintiff's attorney and told him that the defendant was leaving for Europe on the 17th, and repeated that, if the plaintiff did not appeal, the judgment could not be satisfied while he was gone. The plaintiff's attorney said that he had talked with the plaintiff's president and that the plaintiff was still undecided whether to appeal, but that he would tell the defendant's attorney "promptly" after a decision had been reached. The plaintiff's attorney who tried the case had been on vacation during August, but he did nothing until September 30 when he moved before Judge Kaufman to extend the time to appeal to October 17, sixty days after entry of the judgment. The present appeal is from Judge Kaufman's denial of this motion.

It is common ground that since the amendment to Rule 77(d) in 1946, the time to appeal from a judgment begins to run from the date of its entry and not from any notice of entry, as was the case before the amendment. Hill v. Hawes,...