Roth v. Hyer, 10932.

• Decision Date: 22 April 1944
• Docket Number: No. 10932.,10932.
• Citation: 142 F.2d 227
• Parties: ROTH et al. v. HYER et al. HYER et al. v. ROTH et al.
• Court: U.S. Court of Appeals — Fifth Circuit

142 F.2d 227 (1944)

ROTH et al. v. HYER et al. HYER et al. v. ROTH et al.

No. 10932.

Circuit Court of Appeals, Fifth Circuit.

April 22, 1944.

Lloyd B. Kanter, of Brooklyn, N. Y., and H. N. Roth and Clark W. Jennings, both of Orlando, Fla., for appellants.

J. Thomas Gurney and Hugh Akerman, both of Orlando, Fla., for appellees.

Before SIBLEY, McCORD, and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

The suit is one at law for breach of a contract allegedly made by defendants, R. L. Hyer and W. M. Davis and Son Company, to sell to plaintiffs, Benjamin H. Roth, Jerome Roth, and Milton C. Zaidenberg, a landlord's claim against United Cigar Stores Co., which was in reorganization proceedings under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207. The claim had been allowed for $68,629.77, and it was alleged that defendants agreed to sell it for seventy-five cents on the dollar, but on April 6, 1937, refused to deliver and transfer it. There was an alternative count against Charles P. Dickinson, but it has been taken out of the case. A demand for jury trial was made, but not in due time. So the case was tried by the judge, who gave judgment for the defendants. On appeal this judgment was "reversed for further and not inconsistent proceedings." Roth v. Hyer, 5 Cir., 133 F.2d 5, 9.

The plaintiffs thereafter moved in the District Court for a summary judgment, except as to the amount of damages. The defendants offered an amendment of their answer, it being principally a denial of authority in the attorneys who purported to sell the claim, and of any actual meeting of minds; and they filed a demand for a jury trial. The judge held that the decision of the appellate court foreclosed trial of anything but the amount of damages, refused to allow the amendment of the answer, refused a jury trial, and tried the issue of damages. He rejected the measure of damages contended for by the plaintiffs based on the value of the cash, stocks and bonds which were to be issued for the claim on reorganization if a proposed plan should be approved, as it afterwards was, and held that the damages were measured by the excess of value of the claim at the time of the breach over the contract price. Both plaintiffs and defendants appeal.

1. Plaintiffs deny that defendants' appeal brings up any orders or judgments except those named in the notice of appeal. We think otherwise. The final judgment, (or such interlocutory one as may be appealed from), is the judgment to be designated under Rule of Civil Procedure 73(b), 28 U.S.C.A. following section 723c; but the appeal draws in question all rulings of the court that produced that judgment. These prior rulings and judgments under the new practice are made part of the record on appeal, as provided in Rule 75; and Rule 24(2) (b) of this Court requires that the appellant in his brief shall specify separately and particularly each error asserted and intended to be urged. It is not necessary to list them in the notice of appeal.

2. We accordingly may review the refusal of a jury trial. By Rule 38(b) and (d) the right of jury trial of an issue is waived unless a demand for it is made not later than ten days after the service of the last pleading directed to such issue. We do not think the right to make the demand is revived by the reversal of a case for a new trial, nor by a belated amendment of pleadings touching the same general issues. We accordingly hold that there was no error here on the retrial in refusing the demand for a jury trial. But it may happen that a judge on a retrial may think best to have a jury, and by Rule 39(b) in such a case the Court in its discretion upon motion may order a trial by jury, though there is no longer a right to demand one. A motion to the court under Rule 39 rather than service of a demand under Rule 38 is the proper course in such a situation. It was still open to either side.

3. The judge erred in ruling that no issue was for trial except the amount of the damages. The judgment on the first trial was simply one in favor of the defendants and for costs. It adjudicated in general terms that the plaintiffs could not recover. The appellate court, one judge dissenting, thought that judgment was erroneous and reversed and set it aside, ordering "further and not inconsistent proceedings". The appellate court could probably have entered a final judgment since no jury verdict was involved (3 Am.Jur., Appeal and Error, § 1208), and the successful appellants moved it to do this, but the motion was denied. The court could have made a final adjudication of the issue of liability on the record before it, and ordered that only the amount of damages be tried. It did not do that, but reversed and annulled the only judgment there was and ordered further consistent proceedings. The question is, what proceedings will be...