Porter v. Borden's Dairy Delivery Co., 11354.
| Decision Date | 06 August 1946 |
| Docket Number | No. 11354.,11354. |
| Parties | PORTER, Administrator, Office of Price Administration, v. BORDEN'S DAIRY DELIVERY CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Herbert H. Bent, Regional Litigation Atty., OPA, of San Francisco, Cal., for appellant.
Pillsbury, Madison & Sutro, Eugene M. Prince, and Laurence H. Smith, all of San Francisco, Cal., for appellee.
Before DENMAN, BONE and ORR, Circuit Judges.
The Notice of Appeal, filed March 15, 1946, is from "the final judgment entered in this action on January 29, 1946." On January 29 findings were filed and entered. It was not until the next day, January 30, that judgment was entered. We are of the opinion that since the notice of appeal is addressed to the final judgment that the mistake of a day in the designation of the date of its entry is immaterial and that the appeal is well taken. Martin v. Clarke, 7 Cir., 105 F.2d 685, 124 A.L.R. 497; Shannon v. Retail Clerks' International P. Ass'n, 7 Cir., 128 F.2d 553; and Wilson v. Southern Ry. Co., 5 Cir., 147 F.2d 165.
We also are of the opinion that the entry of the judgment reading "Filed final decree for Deft" shows the "substance of the judgment of the Court" as required under rule 79(a) and rule 58, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The relief sought by the complaint was for damages and an injunction against defendant and the final judgment for defendant could have but one substance, i.e., the denial of any such relief.
We are also of the opinion that in the circumstances as stated by the appellant, the failure to designate the portions of the record and the statements of points and authorities relied upon do not warrant the dismissal of the appeal.
The motion to dismiss the appeal is denied.
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