United States v. Clearfield State Bank, No. 73-1703

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtCLARK, ; HILL and SETH, Circuit
Citation497 F.2d 356
PartiesUNITED STATES of America, Plaintiff-Appellant, v. CLEARFIELD STATE BANK, Defendant-Appellee. UNITED STATES of America, Petitioner, v. Honorable Aldon J. ANDERSON, Judge, United States District Court for the District of Utah, Respondent.
Decision Date07 June 1974
Docket NumberNo. 73-1703,73-1774.

497 F.2d 356 (1974)

UNITED STATES of America, Plaintiff-Appellant,
v.
CLEARFIELD STATE BANK, Defendant-Appellee.

UNITED STATES of America, Petitioner,
v.
Honorable Aldon J. ANDERSON, Judge, United States District Court for the District of Utah, Respondent.

Nos. 73-1703, 73-1774.

United States Court of Appeals, Tenth Circuit.

June 7, 1974.


497 F.2d 357

David English Carmack, Tax Div., Dept. of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen. Meyer Rothwacks and Crombie J. D. Garrett, Washington, D. C., on the brief), for plaintiff-appellant and petitioner.

Richard W. Campbell, Ogden, Utah, for defendant-appellee and respondent.

Before CLARK,* Justice ; HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

The question presented by this consolidated appeal and application for a writ of mandamus is whether a district court's order granting summary judgment is a final judgment.

In 1963 the M & S Construction & Engineering Company (taxpayer) borrowed funds from appellee Clearfield State Bank to finance a construction project, giving promissory notes for the loans. Taxpayer subsequently became insolvent, was unable to complete its work, and defaulted on its notes. At the same time it was indebted to appellant United States, one of approximately twenty creditors, for failure to pay taxes, and a federal tax lien arose.

Claiming that a wrongful refusal to make additional loans under a long-term loan agreement destroyed its business, taxpayer instituted suit against appellee in Utah state court. Appellee counterclaimed for the amount of the unpaid and past due notes. Thereafter appellant served a notice of levy upon appellee for taxpayer's unpaid taxes ($33,573.25), claiming that taxpayer's cause of action against appellee was a property right owned by taxpayer and held by appellee. Appellee did not pay the tax.

Several years later taxpayer and appellee settled the suit. Appellee's counter-claim was dismissed and it paid $40,000 into the state court for taxpayer's benefit. Appellant then commenced this suit (No. 73-1703) against appellee, contending its failure to honor the tax levy made it personally liable for taxpayer's unpaid taxes. The complaint alleged that appellee was indebted to taxpayer in the amount of $103,000, a figure arrived at by adding the value of the counter-claim to the $40,000 settlement.

Appellee answered, denying the debt, and then filed a motion for summary judgment. Appellant opposed the motion and filed its own motion for a partial summary judgment on the counterclaim issues. The trial court granted appellee's motion and denied appellant's motion on January 22, 1973. Contending this was not a final judgment appellant,

497 F.2d 358
on July 3, 1973, filed a motion requesting that a final judgment be entered. A hearing was held and the motion was denied on the grounds that the January 22 order was a final judgment

Appellant then filed a notice of appeal, and, on the theory that the court's orders were not final and therefore non-appealable, also filed an application for a writ of mandamus (No. 73-1774) to require entry of final judgment. On appeal, appellant contends the trial court's order granting summary judgment was not final because it did not dispose of all the issues and because it did not comply with the separate document...

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21 practice notes
  • Boccardo v. Safeway Stores, Inc.
    • United States
    • California Court of Appeals
    • August 13, 1982
    ...judgment must be set out on a document separate from the opinion or memorandum." (United States v. Clearfield State Bank (10th Cir. 1974) 497 F.2d 356, 358, fn. omitted.) Thus, in Clearfield, an order granting summary judgment was held to satisfy the rule because it was itself a separate do......
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...the separate-document requirement, see Cardillo v. United States, 767 F.2d 33 (2d Cir.1985); United States v. Clearfield State Bank, 497 F.2d 356, 359 (10th Cir.1974), an order that is part of a district court opinion or memorandum does not, see Advisory Committee Note to 1963 Amendment of ......
  • Hull by Hull v. U.S., Nos. 91-5091
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 10, 1992
    ...rule. See United States v. City of Kansas City, Kan., 761 F.2d 605, 606-07 (10th Cir.1985); United States v. Clearfield State Bank, 497 F.2d 356, 358-59 (10th Cir.1974) ("Rule 58 applies where it is uncertain whether a final judgment has been entered, as where a trial judge writes an opinio......
  • U.S. v. Torres, No. 01-6327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 21, 2002
    ...case where there is uncertainty about whether final judgment has been entered." Id. at 185 (citing United States v. Clearfield State Bank, 497 F.2d 356, 358 (10th Cir.1974). We further noted that a separate judgment might not have to be entered if an "order[ ] contain[s] neither a discussio......
  • Request a trial to view additional results
21 cases
  • Boccardo v. Safeway Stores, Inc.
    • United States
    • California Court of Appeals
    • August 13, 1982
    ...judgment must be set out on a document separate from the opinion or memorandum." (United States v. Clearfield State Bank (10th Cir. 1974) 497 F.2d 356, 358, fn. omitted.) Thus, in Clearfield, an order granting summary judgment was held to satisfy the rule because it was itself a separate do......
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...the separate-document requirement, see Cardillo v. United States, 767 F.2d 33 (2d Cir.1985); United States v. Clearfield State Bank, 497 F.2d 356, 359 (10th Cir.1974), an order that is part of a district court opinion or memorandum does not, see Advisory Committee Note to 1963 Amendment of ......
  • Hull by Hull v. U.S., Nos. 91-5091
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 10, 1992
    ...rule. See United States v. City of Kansas City, Kan., 761 F.2d 605, 606-07 (10th Cir.1985); United States v. Clearfield State Bank, 497 F.2d 356, 358-59 (10th Cir.1974) ("Rule 58 applies where it is uncertain whether a final judgment has been entered, as where a trial judge writes an opinio......
  • U.S. v. Torres, No. 01-6327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • February 21, 2002
    ...case where there is uncertainty about whether final judgment has been entered." Id. at 185 (citing United States v. Clearfield State Bank, 497 F.2d 356, 358 (10th Cir.1974). We further noted that a separate judgment might not have to be entered if an "order[ ] contain[s] neither a discussio......
  • Request a trial to view additional results

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