United States v. Evans, 8665.

• Decision Date: 19 September 1966
• Docket Number: No. 8665.,8665.
• Citation: 365 F.2d 95
• Parties: UNITED STATES of America, Appellant, v. D. W. EVANS and Edith Evans, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 95 (1966)

UNITED STATES of America, Appellant, v. D. W. EVANS and Edith Evans, Appellees.

No. 8665.

United States Court of Appeals Tenth Circuit.

August 17, 1966.

Rehearing Denied September 19, 1966.

A. Donald Mileur, Atty., Dept. of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis and Frank McAnear, Attys., Dept. of Justice, on the brief), for appellant.

A. Harry Crane, Topeka, Kan. (Ward D. Martin, Arthur L. Claussen, Harvey D. Ashworth, John Hamilton, Topeka, Kan., L. R. Hannen, Burlington, Kan., and Raymond L. Spring, Topeka, Kan., on the brief), for appellees.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

HILL, Circuit Judge.

The government seeks to perfect an appeal, in three condemnation cases, from an order entered and denominated "Order Sustaining Motion to Direct United States of America to Pay Deficiency Plus Interest and Judgment and Order of Distribution." The landowner has filed a motion to dismiss the appeal contending the notice of appeal was not timely filed.

The pertinent procedural facts, not being in dispute, are as follows: In 1962 the government filed two condemnation cases, each seeking to take tracts of land belonging to appellees and in 1964, filed a third case, seeking to take additional tracts from the same owners. Numerous other tracts were involved in these cases not belonging to appellees. The tracts being taken and belonging to appellees were not contiguous and were located in several different Counties of Kansas, but were all taken in connection with the construction of the John Redmond Dam and Reservoir in the District of Kansas. Appellees' various tracts were consolidated for trial, as to the issue of just compensation, before a commission appointed by the United States District Court for the District of Kansas, pursuant to Rule 71A(h), F.R.Civ.P. Trial was had before the commission and its report duly filed on April 20, 1965. The government filed written objections to the report, a hearing was had before one of the judges of the court and on July 15, 1965, the court entered a memorandum decision overruling the government's objections to the report and confirming the same in all respects, including the commission's findings as to just compensation to be allowed to appellees. On July 23, 1965, a formal order was entered journalizing the action of the court as reflected by the memorandum decision. The landowners, having not received all of the awarded compensation due them under the July 23rd order, on October 4, 1965, filed their motion to require the government to pay the deficiency and on October 14, 1965, the court sustained the motion in a journal entry entitled "Order Sustaining Motion to Direct United States of America to Pay Deficiency Plus Interest and Judgment and Order of Distribution." At the October 14 hearing the government orally moved for the entry of a judgment in the matter. The order that was entered, recording the proceedings had at that time, contained not only an order directing the government to pay into the registry of the court the amount necessary to satisfy the full amount of compensation awarded plus interest but it contained all of the usual findings and orders of a journal entry concluding and closing a condemnation case.

The precise question is whether the July 23 order, approving and confirming the commissioners' report, constituted a final judgment as between appellant and appellees. At the outset, we are confronted with Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 and United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721. In Catlin a condemnation proceeding was involved and the appealability of an order entered was the issue. Speaking generally about a final appealable order in condemnation cases, the court said "A `final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. * * * Hence, ordinarily in condemnation proceedings appellate review may be had only upon an order of judgment disposing of the whole case, and adjudicating all rights, including ownership and just compensation, as well as the right to take the property." The F. & M. Schaefer Brewing Company case held that a memorandum opinion did not constitute a final appealable order because it did not contain sufficient facts from which the amount of interest due could be computed. This case also points out that although no particular words are necessary to constitute a final judgment, if the...