Peterman v. Indian Motorcycle Company, 4860

• Decision Date: 28 October 1954
• Docket Number: 4861.,No. 4860,4860
• Citation: 216 F.2d 289
• Parties: Albert C. PETERMAN, Plaintiff, Appellant, v. INDIAN MOTORCYCLE COMPANY et al., Defendants, Appellees (two cases).
• Court: U.S. Court of Appeals — First Circuit

216 F.2d 289 (1954)

Albert C. PETERMAN, Plaintiff, Appellant, v. INDIAN MOTORCYCLE COMPANY et al., Defendants, Appellees (two cases).

Nos. 4860, 4861.

United States Court of Appeals First Circuit.

October 28, 1954.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Nathan Fink, Boston, Mass., for appellant.

Rupert L. Mapplebeck, Boston, Mass., for Indian Motorcycle Co. Robert W. Cornell, Boston, Mass., for Indian Sales Corp.

MAGRUDER, Chief Judge.

The appeal in No. 4860 is from a judgment for the defendants entered May 27, 1954, in accordance with a jury verdict in a personal injury case, and from a subsequent order of the district court denying a motion for a new trial duly filed within ten days after the entry of said judgment. Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Laying aside the merits of the appeal for later discussion, we have no doubt that the notice of appeal in this case was procedurally appropriate. It may perhaps be helpful to make some brief comment on the procedure involved:

Sometimes the losing party makes a motion for a new trial prior to the entry of judgment on the verdict. If the trial court denies the motion and then enters judgment, the order denying the motion for a new trial is an interlocutory order and as such is not appealable. 28 U.S.C. §§ 1291, 1292. But if the district court commits error of law in denying such motion for a new trial, such error necessarily infects the ensuing judgment entered in accordance with the verdict. Hence the losing party suffers no detriment through his inability to appeal from the interlocutory order denying a new trial, for his assertion of error will be presented to the appellate court by the taking of an appeal from the final judgment.

On the other hand, sometimes the losing party makes a motion for a new trial after the entry of judgment on the verdict — which was the case here. Of course, if such a motion is granted, the district court must of necessity vacate the judgment previously entered. In so far as such motion is based upon alleged errors which entered into and infected the judgment — as, for instance, alleged erroneous rulings at the trial or in instructions to the jury — it is not necessary for the complaining party to appeal separately from the order denying the motion for a new trial, for the filing of a timely notice of appeal from the final judgment will bring up such questions for review. In so far as the motion for a new trial, filed within ten days after the entry of judgment, presents some new matter which was not before the court at the time it entered the judgment — for instance, if the motion is based upon newly discovered evidence, or upon allegations of jury tampering, or allegations of misconduct of jurors in the course of the trial — then if the aggrieved party wishes to present to the appellate court the contention that the trial court erred as a matter of law in denying the motion for a new trial, he cannot do so by appealing from the final judgment alone; he must file a notice of appeal from the subsequent order denying the motion. This he may do, for such order of denial, after entry of judgment, amounts to a decision to let the judgment stand as previously entered, and since nothing further remains to be determined in the cause, the order of denial is a "final decision" within the meaning of 28 U.S.C. § 1291. See Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380, 383.

As already indicated, in No. 4860 appellant filed a notice of appeal both from the final judgment of May 27, 1954, entered pursuant to the verdict, and from the subsequent order of June 4, 1954, denying the motion for a new trial filed June 1, 1954.

The notice of appeal in No. 4861 is from an order of July 13, 1954, in which the district court denied a so-called Supplemental Motion for New Trial filed the same day. This motion was untimely, unless it could be considered as a motion under Rule 60(b). Besides that, the motion, if granted, would have required the district court to vacate the judgment for the defendants entered May 27, 1954. But on July 13, 1954, the district court no longer had control over that judgment, since the plaintiff had filed his notice of appeal therefrom on June 21, 1954, and the case was pending within the exclusive jurisdiction of the Court of Appeals. See Midland Terminal Ry. Co. v. Warinner, 8 Cir., 1923, 294 F. 185, 188; Walleck v. Hudspeth, 10 Cir., 1942, 128 F. 2d 343, 344; Bergeron v. Mansour, 1 Cir., 1945, 152 F.2d 27, 31, 34. And see also the discussion in United States v. Newbury Mfg. Co., 1 Cir., 1941, 123 F.2d 453. The appeal in No. 4861 is therefore wholly abortive, and will have to be dismissed. Of course the Supplemental Motion for New Trial, and the district court's action thereon, cannot properly be considered as part of the record on appeal in No. 4860, for these are further proceedings in the district court, occurring after the filing of the notice of appeal had deprived the district court of jurisdiction over the final judgment under review in that case.

Coming then to the merits of No. 4860, we have concluded that none of the points raised by appellant are well-taken.

The case presented by the plaintiff was as follows: Defendant Indian Motorcycle Company, a Massachusetts corporation, manufactured or assembled a new motorcycle, which it sold to the codefendant, Indian Sales Corporation, a Delaware corporation 25 per cent of the common stock of which was owned by the first-named defendant, and which at the relevant dates was sole distributor of motorcycles manufactured by Indian Motorcycle Company. Indian Sales Corporation subsequently sold the motorcycle in question to the City of New York. Plaintiff, a policeman in the City of New York, had occasion to use the motorcycle in the course of his official duties.

According to the plaintiff's testimony, he was so operating the motorcycle on April 18, 1951, at which date the vehicle...