United States v. McWhirter, 23928.

• Decision Date: 19 April 1967
• Docket Number: No. 23928.,23928.
• Parties: UNITED STATES of America, Appellant, v. S. T. McWHIRTER and Betty McWhirter, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.2d 102 (1967)

UNITED STATES of America, Appellant, v. S. T. McWHIRTER and Betty McWhirter, Appellees.

No. 23928.

United States Court of Appeals Fifth Circuit.

April 19, 1967.

Alan S. Rosenthal, Jack H. Weiner, Attys., Dept. of Justice, J. William Doolittle, Acting Asst. Atty. Gen., William Wayne Justice, U. S. Atty., Washington, D. C., for appellant.

S. T. McWhirter and Betty McWhirter, pro se.

Before GEWIN, THORNBERRY and DYER, Circuit Judges.

GEWIN, Circuit Judge:

In this discovery case the United States seeks to compel the appellees, its judgment debtors, to answer certain written interrogatories propounded under Rule 69(a), Fed.R.Civ.P., relating to their financial resources. The United States District Court for the Eastern District of Texas denied the government's motion to compel, and the government appeals. We reverse the judgment of the district court and remand the cause for further proceedings.

The appellees obtained a loan from the Small Business Administration in December 1961. The loan was evidenced by a promissory note bearing 3% interest. The appellees subsequently defaulted on the note and the government obtained a default judgment against them in the amount of $1,782.21 plus interest and costs. On November 5, 1965, the government sent written interrogatories to the appellees for the purpose of obtaining information relative to their financial assets. The appellees did not respond. Approximately a month later the government sent the appellees another letter explaining the purpose of the interrogatories and offering the assistance of the United States Attorney should they desire or need help in answering the interrogatories. The letter also informed the appellees that if answers were not received in ten days, the government would seek a court order compelling them to answer. Again no response was received. Finally on January 13, 1966, the government moved in the district court to enter an order compelling the appellees to answer the interrogatories.

The district court denied the motion on the grounds that Rule 69(a) only allowed the taking of depositions and did not include the right to propound written interrogatories. The court noted in its letter opinion that there was an apparent conflict among the commentators on the question whether Rule 69(a) authorized the taking of written interrogatories, but concluded that, though such a procedure was desirable, relief would have to come by way of amendment to the rule.¹ The order was entered without prejudice to the government's right to take depositions of the appellees on written interrogatories pursuant to Rule 31, Fed.R.Civ.P.

The government argues on appeal first, that the order denying its motion to compel answers to the interrogatories is a final and appealable judgment under 28 U.S.C. § 1291 (1964), and second, that Rule 69(a)² authorizes the propounding of written interrogatories either pursuant to Rule 33 Fed.R.Civ.P. or pursuant to Rule 737³ of the Texas Rules of Civil Procedure.

The jurisdiction of the Courts of Appeals is limited under 28 U.S.C. § 1291 to appeals from final judgments of the district courts, and under 28 U.S.C. § 1292 to certain interlocutory orders. Traditionally, a final judgment has been defined as one which terminates the action and leaves nothing to be done but the ministerial functions necessary to execute the judgment. Gospel Army v. City of Los Angeles, 331 U.S. 543, 546, 67 S.Ct. 1428, 91 L.Ed. 1662 (1947); Anastasiadis v. S. S. Little John, 339 F. 2d 538 (5 Cir. 1964). Recent decisions of the Supreme Court have expanded the scope of final judgments beyond the limited class encompassed by the traditional rule, and have stressed that the definition of a final judgment is a pragmatic one. Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Thus, the Court has held final and appealable ancillary orders which determine substantial rights of the parties which, if not promptly reviewed, will subject the party to irreparable harm. Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 84 S.Ct. 1273, 12 L.Ed.2d 394 (1964). In such a situation, review postponed amounts to review denied. Cohen v. Beneficial Indus. Loan Corp., supra. The order from which the government appeals falls squarely within that category.

The district court's order determined, and denied, the government's right to propound written interrogatories to the appellees. From the nature of the post-judgment relief sought, it is unlikely that there will be a subsequent judgment from which the government can appeal and thereby obtain review of this order in question.⁴ Thus, to hold that the order is not final will preclude appellate review of the district court's determination. Such a construction of section 1291 hardly comports with the requirement that the section be given a practical interpretation. Accordingly, we conclude that the order of the district court is a final judgment within the meaning of section 1291. Kelly v. Greer, 354 F.2d 209 (5 Cir. 1965); United States v. Certain Lands in the Borough of Manhattan, 332 F.2d 679 (2 Cir. 1964); Lee v. Western Wool Processors, Inc., 313 F.2d 13 (10 Cir. 1962).

We turn now to the merits of the case. Rule 69(a), Fed.R.Civ.P., provides that in aid of judgment or execution a judgment creditor may examine any person, including the judgment debtor, in the manner provided by the federal rules for taking depositions, or in the manner provided by state practice. The rule makes no reference to written interrogatories, but the government argues that the term "depositions" as used in Rule 69(a) refers to all the discovery procedures available under Rules 26 to 33. The argument is based mainly on the contention that Rule 69(a) was intended to afford a post-judgment method of securing information concerning the assets of judgment debtors and that to effectuate that intent the rule should be construed to allow the use of the inexpensive device of written interrogatories to secure that information.

There is a dearth of authority as to the issue before us. The only case which we have been able to find which deals with the types of discovery devices available under Rule 69(a) is concerned with the right to compel the production of documents. See M. Lowenstein & Sons, Inc. v. American Underwear Mfg. Co., 11 F.R.D. 172 (E.D.Pa.1951). The court there held that Rule 69(a) did not authorize the production of documents. That case is distinguishable and does not preclude the taking of interrogatories. See 3 Barron & Holtzoff, Federal Practice & Procedure § 1484, p. 532 (Wright ed. 1958). Thus we must determine whether the Rule limits post-judgment discovery to depositions on the basis of the language of the rule and the scant history dealing with its promulgation.

Rule 69 was intended to establish an effective and efficient means of securing the execution of judgments. As part of that process it provides for the securing of information relating to the assets of the judgment debtor. Although the rule speaks solely in terms of depositions, the testimony before the House Committee on the Judiciary which considered the federal rules when they were promulgated clearly indicates that the framers intended to give the judgment creditor the right to use all the discovery devices afforded by Rules 26 to 33. Thus, Major Tolman, Secretary to the Advisory Committee on the Federal Rules, testified that:

"Rule 69 deals with execution. It follows the present practice and preserves existing statutes. It also allows the deposition rules (rules 26 to 33) to be used in proceedings supplementary to execution." Hearings Before the House Comm. on the Judiciary, 75th Cong. 3rd Sess., Ser. 17, p. 126 (1938).

It would, therefore, appear that the use of the term depositions in the rule was not intended to limit post-judgment discovery to the taking...