Stevens v. Turner, 11255.

• Decision Date: 18 May 1955
• Docket Number: No. 11255.,11255.
• Citation: 222 F.2d 352
• Parties: Carline Turner STEVENS v. Roscoe TURNER.
• Court: U.S. Court of Appeals — Seventh Circuit

222 F.2d 352 (1955)

Carline Turner STEVENS v. Roscoe TURNER.

No. 11255.

United States Court of Appeals Seventh Circuit.

May 18, 1955.

Ted B. Lewis, French M. Elrod, Indianapolis, Ind., for appellant.

James V. Donadio, R. Stanley Lawton, Donald G. Sutherland, Indianapolis, Ind., for plaintiff-appellee, Ross McCord Ice & Miller, Indianapolis, Ind., of counsel.

Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

Before reaching the merits of this appeal by defendant from a summary judgment in favor of plaintiff, we must consider plaintiff's motion to dismiss for want of jurisdiction.

Plaintiff brought the action to recover money alleged to be due her for support and maintenance under a California divorce decree. On her motion a summary judgment was entered in her favor on June 22, 1954. On June 28 defendant filed a motion in which it was averred that recovery of a portion of the judgment in the amount of $8,800 was barred by the five-year statute of limitations of California, and it was prayed that the judgment be amended by reducing the total amount of the recovery by that amount.

On July 19, 1954, while the motion was still pending, defendant filed his notice of appeal under which this appeal is prosecuted. The parties admit that defendant's motion was finally overruled by the trial court on August 23, 1954, though that fact does not appear of record. After the printed record and defendant's briefs had been filed in this court, plaintiff moved to dismiss the appeal, contending that it was premature, and that, therefore, the court has no jurisdiction.

The initial question with which we are faced is whether the appeal was taken from a final judgment as that term is used in the jurisdictional provisions of 28 U.S.C.A. § 1291, i. e., a judgment which terminates the litigation on the merits. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911. And that question depends on the nature and effect of defendant's motion which was still pending undetermined in the court below when the appeal was taken.

It is obvious from the face of the motion that it is not, as defendant contends, addressed merely to matters of form to correct a ministerial error in the entry of the judgment. On the contrary, defendant sought thereby to plead the California limitations statute. His was a pleading addressed to, and contemplated to affect, the substantive rights of the parties. It asked that those rights, already adjudicated, be altered by reducing the judgment by the sum of $8,800. This situation is not unlike that before the court in Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118, where, during the term in which a decree had been entered, the trial court, sua sponte, entered an order extending the term for 90 days, prefaced on his recital that "it will be necessary to modify or amend" the decree. Although the question before the Supreme Court was whether an appeal which had been taken after an order modifying the decree had been entered was timely, the language of the Court at 298 U.S. at pages 169-170, 56 S.Ct. at page 707 is aptly descriptive of the effect of the motion with which we are concerned, to-wit:

"We think the effect of the order extending the term of court was to suspend the operation of the decree so that no appeal could be taken from it until it had been amended or confirmed, and its vigor thus restored. Until such action had been taken, it was no longer a decree at all. The judge had plenary power while the term was in existence to modify his judgment * * * or even revoke it altogether. * * * Finality was lacking until his choice had been announced."

The significance of such a motion is the same under the Federal Rules of Civil Procedure, 28 U.S.C.A., in the light of the provision of Rule 73(a), which tolls the running of the time for appeal during the pendency of designated substantive motions. United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160; Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714. Thus the effect of defendant's motion was to keep in the district court a continuing jurisdiction to modify or alter or to reaffirm the judgment and thereby to deprive the judgment of the finality essential to our jurisdiction. Chieftain Pontiac Corp. v. Julian, 1 Cir., 209 F.2d 657; Green v. Reading Co., 3 Cir., 180 F.2d 149; Fleming v. Borders, 9 Cir., 165 F.2d 101. On dismissing an appeal as premature because timely motions for a new trial and for judgment in accordance with a reserved motion for directed verdict were still pending in the trial court, the Court of Appeals for the Third Circuit...