389 F.2d 619 | 3rd Cir. | 1968
OPINION OF THE COURT
This case involves a civil proceeding in the nature of a declaratory judgment action
The prayer for relief in plaintiffs’ complaint asks for a decree and order in two parts, (1) “that the course of the fence erected as the boundary line between Estate Lille Norge and Estate Mariendahl be fixed and decreed as the boundary line between the property of the plaintiffs and the property of the Monsanto defendants”, and also asks, (2) “that the easterly boundary line described in the deed under which the defendants, Osmond Kean and Eustace Dench, claim property, be decreed as the eastern boundary line of their property.”
In their answers to the complaint, defendants joined in the request for the establishment of the true and proper southern boundary of Estate Lille Norge. However, the defendants made no mention in their pleadings of joining
Nevertheless, at the trial in the latter part of March, 1966, the sole issue appeared to be where a straight line running north thirty-six degrees and 05 minutes east and dividing the eastern portion from the western part of Estate Mariendahl should be drawn. The attorney for the plaintiffs bore the brunt of the burden of establishing that the line should be drawn through a point “A” on the southern boundary of the estate which was over a thousand feet westwardly from point “D” through which defendant Kean said the line should pass. The land area between these two lines was over ninety acres. The trial judge found, in agreement with the plaintiffs and the Monsanto defendants, that the straight line passed through point “A”. A document entitled “Judgment” contains a recital that it is ordered that the boundary line in issue is established as passing through point “A” and “that the Department of Public Works conform their records accordingly.” The order was approved as to form by the court.on November 29, 1962, and the “Final Judgment” of the court was signed and entered in this action November 29, 1966.
Section 1291 of the Judicial Code, Title 28, U.S.C., in pertinent part, provides: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the . . . District Court of the Virgin Islands, . . . .” The appeal in this case is not from a final decision of the District Court of the Virgin Islands.
Section 25 of the Revised Organic Act of 1954, 48 U.S.C. § 165, makes the Federal Rules of Civil Procedure,
Rule 54(b) of the Federal Rules of Civil Procedure, 2 V.I.C., Title 5, Appendix IR 54, provides:
“(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party-claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
In this case multiple parties are involved and more than one claim for relief is presented. The document entitled “Judgment” contained neither a determination that there is no just reason for delay nor an express direction for the entry of judgment. The record does not disclose that the question of the boundary line between Estate Lille Norge and Estate Mariendahl has been withdrawn or that the parties have agreed among themselves as to where it exists. However, there is testimony in the record by one Richard Seidle, a registered surveyor with the Antilles Land Development Company of St. Thomas, who made a survey at the request of defendant Kean. He stated that a portion of the southern boundary line of Estate Mariendahl was a fence line which defendant Kean pointed out, later corroborated by plaintiff Calistro, as well as one of the Monsanto’s, and a concrete monument was erected thereon. This point was the starting point which the court Meter-
This conflicting testimony is offered to show the confusion that exists in the court’s failure to define the southeastern and southwestern boundary lines of the Calistro Estate as requested in' the prayer for relief. While the court took voluminous testimony concerning the eastern boundary line of the Kean Estate, in its judgment it said nothing about the southern and western boundary lines of the Calistro Estate, as we have indicated. Though in the prayer of the petition the court was requested to show the southern boundary line of the Calistro Estate and at trial the request was made to determine the same, as well as a letter by counsel after judgment entered to amend the decree, there was no response forthcoming from the court. Though it may well be that the southeastern boundary line of Calis
Accordingly, since one of the purposes of trial is to determine the boundary line of Calistro or Longmat property, the dispute is still before the court since it has been undecided by it.
The appeal will be dismissed for lack of jurisdiction in this court and the action will be remanded to the District Court of the Virgin Islands to make disposition of all issues raised in the pleadings and no finality is to be attached to the judgment here rendered as all boundary lines herein adverted to may be subject to revision by the court before
28 U.S.C.A. §§ 2201, 2202.
In this court, the attorney for plaintiffs below filed a brief and appendix and argued the case for the “appellees”. The brief indicates that he represents the plaintiffs-appellees”.
For example, see Martin v. Wise, 38 F.R.D. 477, 480 (D.C. V.I. 1965).