Ram v. PARAMOUNT FILM DISTRIBUTING CORPORATION

• Decision Date: 18 April 1960
• Docket Number: No. 8057.,8057.
• Citation: 278 F.2d 191
• Parties: Herbert B. RAM; Esther B. Ram; Sam Bogoslawsky; Jacob Bogoslawsky; and Max Bogoslawsky, Appellants, v. PARAMOUNT FILM DISTRIBUTING CORPORATION; Universal Film Exchanges, Inc.; Loew's Incorporated; United Artists Corporation; RKO Radio Pictures, Incorporated; Columbia Pictures Corporation; Twentieth Century-Fox Film Corporation; Warner Brothers Pictures Distributing Corporation, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F.2d 191 (1960)

Herbert B. RAM; Esther B. Ram; Sam Bogoslawsky; Jacob Bogoslawsky; and Max Bogoslawsky, Appellants, v. PARAMOUNT FILM DISTRIBUTING CORPORATION; Universal Film Exchanges, Inc.; Loew's Incorporated; United Artists Corporation; RKO Radio Pictures, Incorporated; Columbia Pictures Corporation; Twentieth Century-Fox Film Corporation; Warner Brothers Pictures Distributing Corporation, Appellees.

No. 8057.

United States Court of Appeals Fourth Circuit.

Argued March 15, 1960.

Decided April 18, 1960.

William R. Glendon, New York City (Augustus T. Graydon, Columbia, S. C., John F. Whicher, New York City, C. T. Graydon, Columbia, S. C., Royall, Koegel, Harris & Caskey, and Sargoy & Stein, New York City, on brief), in support of motion to dismiss appeal.

Isadore S. Bernstein, Columbia, S. C. (Lonnie A. Garvin, Aiken, S. C., on brief), in opposition to motion to dismiss appeal.

Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.

PER CURIAM.

These cases come before the court on a motion of the appellees to dismiss the appeal on the ground that it was not taken within thirty days from the judgments appealed from, as required by Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Identical complaints were brought by certain motion picture distributors, the appellees, to recover certain moneys claimed to be due from certain exhibitors of films, the appellants, who were under contract to pay to the distributors a fixed sum or a percentage of the gross receipts obtained from admissions. After issue was joined the cases were referred to a Special Master to take testimony and report his findings of fact and conclusions of law to the court. The Special Master consolidated all of the actions for trial, heard the testimony of the parties, and filed a report of his findings of fact and conclutions of law on 23 December 1958, in which he found for the plaintiffs and recommended separate money judgments against each defendant in specified amounts, which included interest at 3 per cent per annum from 1 October 1958 to the date of judgment.

Exceptions to the report were filed by the defendants but after hearing were overruled by the District Judge, who thereupon, on 9 September 1959, passed an order of judgment in which he overruled the exceptions and "ordered that judgment be entered in favor of the plaintiffs and against the defendants in accordance with the report, findings of fact, and conclusions of law of the Special Master." On 10 September 1958 the Clerk of the Court made the following entry on his docket: "Order confirming Special Master's report and so forth and for judgment, copies to counsel."

Thereafter, on 30 September 1959, the plaintiffs submitted to the Clerk in each of the cases a document entitled "Final Judgment" setting forth the amount of damages due to each plaintiff from each defendant or group of defendants with interest from date thereof. The calculations, however, were incorrect since the amounts included interest from 1 October 1958 to 30 September 1959 on the amounts found by the Special Master, and since the Special Master's calculations included interest up to 1 October 1958 the document submitted to the Clerk on 30 September 1959 included interest on interest. These documents were not signed by the judge but by the clerk and were entered by him on his docket on 3 October 1959.

The question for decision is: whether the judgment signed by the District Judge on 9 September 1959 and entered by the Clerk on his docket on 10 September 1959 was the final judgment of the court, or whether the document submitted to the Clerk on 30 September 1959 and signed by him and entered on his docket on 3 October 1959 constituted the final judgment of the court. Rule 58 provides that when the court directs that a party recover only money or costs the Clerk shall enter judgment forthwith, upon receipt by him of the direction, and also provides that notation of the judgment in the civil docket, provided by Rule 79(a), constitutes the entry of the judgment.

The notice of appeal was filed in this case on 2 November 1959 and contained the statement that the appeal was taken from the order of the District Judge dated 9 September 1959. It follows that if this judgment which was entered by the Clerk on 10 September 1959 be...