Clark v. Taylor

9áO wоuld author- statute I think this Cus- specific performance

ize alien with an

todian contract of such a unique chat-

enemy land if related to

tels, contract would (a) such a because against a specifically enforcible the Custo- (b) with

transferee notice think, must, be dian, statute, under this I agree I

regarded As such transferee. colleagues right S.I.G.

with that the have fcoen grant others would licenses to aor against I.G.

specifically enforcible notice, therefore from it with

transferee de- plaintiffs entitled to

believe that are right thus en- be

cree in this suit that

forced the defendant.

That, however, very different award ruling that or should S.I.G. has n since, repeat, patents, title to

ed these im confer S.I.G. ruling valid, from munity, patents even actions, infringement should

judgments make, products— patented use or sell Party think the Four immunity which I precluded.6

Agreement carefully et al. TAYLOR

CLARK

No. Docket Appeals, Second Circuit. Court of

Circuit Sept. 22, 1947. 15, 1947. Revised Oct.

As

FRANK, Judge, Circuit dissenting. part might conceivably argued of a substantial use the “bundle deny rights,” defendant, title but is difficult I. owns the S. G. parted G., transferor “substan- I. has the successor G., tially * injunction should less than I. entire ‘bundle’ S. * attempt Commissioner, Rohmer v. violate the conditions latter supra. best, G., imposed At I. How S. to a most Articles IV-A and V. important part acquired “bundle,” ever, under the authori think" title, cited, far the facts a bare less above which would than ties justify judge injunction prevent pass that which the such an allotted to it. enjoin age title: When a court will 12, 1941, defendant-appel- two. On June temporary appointed re- Propper lant was in the ceiver assets of AKM of located the York, made appointment of New State permanent July on by the state court Meanwhile President on of June 8785, U.S. by Exec. Order States Supp., note, CFR, p. C.A. 95a § 2897,prohibited of Austrian 6 F.R. transfer Secretary property by the unless authorized Secretary has Treasury. of authorized transfer of AKM assets. Propper Taylor, July On sued ASCAP, representing in the York New allegedly state courts to recover sums been ad- yet finally due. This suit has not 4, 1943, September judicated. Alien On Custodian, Property predecessor, plaintiff’s by vested in all himself assets held ASCAP for organization. the Austrian ASCAP for refused a turn- demand the Custodian’s due, over allegedly of the sums and City Socolow, Walter of York A. New brought Dis- Custodian this suit Diamond, ‍‌​‌​​‌​​​‌​​​‌​‌‌‌‌‌​‌​‌​​​‌​​​​​‌​​​​‌‌​‌‌​​‌‌‌‍New York (Alexandеr D. of Court, against Taylor, presi- trict both defendant-appellant. City, brief), ASCAP, Propper, to of and secure dent Schwartz, Atty., Dept. Justice, Prop- of David the turnover and declaration that (Donald Cook, Washington. plaintiff’s right C. per D. to the fund. On of C. had Washing Dir., Property, of Alien of motion Office District granted summary C., ton, Harry LeRoy and S. Propper M. D. of Jones Atty. Gen., Isenbergh, Sp. Assts. his lack title to the funds Feller, and E. Morrisson L. David receiver state court and also his James Attys., Washing Dept. Justice, judgment. D.C.S.D.N.Y., both cross-motion for- McGohey, ton, C, U. S. F.Supp. D. and F. X. Propper From this order John brief), Atty., City, appealed. York of New on.the has The action still remains plaintiff-appellee. against Taylor, pending who has not taken presentation part appeal. CHASE, CLARK, FRANK,

Before and Judges. Circuit complaint counts, is in three first and involve which the matters third CLARK, Judge. Circuit germane second here plaintiff alleges At the outset we must the before Therein us. at some determine finality, length appealability, hence the of an circumstances of the contract AKM holding acting ASCAP, that a receiver for between collection latter, action, royalties the asserted by owner chose order of dispute by parties to among taking the Custodian. It also forth various sets action, appointment has no title thereto. The in the court chose state receiver, alleges here money action way involved sum of conclusion royalties allegedly owed as title or Ameri- his lack of interest the funds Society Composers, appointment. through can' Authors and Defendant organiza- Taylor admitting Publishers to a similar Austrian answered the facts tion, AKM,1 pertinent, under a including between contract the here collection liability. unincorporated 1ASCAP is associa with limited Before June tion; organized liquidated AKM under Austrian AKM in Aus registered cooperative society law as a tria. unspecified royalties, alleging rival claimants to or chose same fund action, separate AKM of collection and that there final defense many royalties judgment only “in when owed there is decision as ASCAP excess dollars,” un- large ownership leaving thousands to the existence prop erty paid dispute. in favor of Not balance ASCAP. The conclusion that a important and only fiduciary represent claiming does this to of the one perhaps also legal of fact—and extensive issue claimants does not formal title setoff— right question of law the judg issue to the assets in is not a final upon the important but references the affidavits to ment the and the central suit bitterly fought dispute. extensive and state Hence the to to case seems us funds, by Propper con- brought for these within authority fall similar the several ASCAP, trips to several by nonappealable cases tested where we Appellate all, some, Division and one tо Court the the orders affecting not parties State, trial not Appeals of and with dispute. to the same Porter American v. had, yet importance Co., 1012; its controlling Distilling show 2 F.2d Photo 157 disposition litigation. the final Corporation Radtke, this metric Products 2 849; Cir., 157 F.2d ex rel. States judgment, filing his motion Before Bressler, Cir., Weinstein v. 2 answered, ap- Propper his admitting also 405; Moore, Cir., Studer v. 2 F.2d 153 royalties pointment and the existence of 902; Atwater v. North American Coal AKM, and then ex- due from ASCAP Corporation, 2 111 Ho F.2d plaintiff’s allega- tensively contested the Co., Hamburg-American horst v. Packet right opposition the funds tions his U.S. 13 443.3 right presents as claim of receiver. Such by District decided issue here, parties The in an endeavor As motions. conflicting these appealability, suggest sustain out, pointed the court the facts as facts connection with receiver’s dispute all in stated quickly and are right are involving different from those legal points as above. substantial original existence claim. But as has were two: whether a re- temporary stressed, complete identity often been ceiver under New York controlling can required be or else every claim law, Act, 977-b, N.Y.Civil Practice takes § by persons dealing different or with differ merely right possession, title or has steps litigation always involve latter, and whether the a different “cause of theory action.” The Order cited prevented Executive above the adopted rules, in the new per including appointment devolution of title here, tinent 54(b), rule Federal Rules Propper permanent as receiver. Dis- Procedure, of Civil following U.S.C.A. trict Court both these issues decided 723c, section that the “transac against Propper.2 tion” or “occurrence” subject is the mat claim, Upon ter of legal rights record to us rather than this seems therefrom; arising clear that this is the case suit additions to or sub appropriate government tractions from official two central core of fact do by Propper Sylvania Other issues raised in- Owens-Ford Glass v.Co. Indus Corporation. jurisdiction court, 814,.

volved the of the Cir.. F.2d question Sylvania of full ac- faith credit to be certiorari poration Industrial Cor Libbey-Owens-Ford decree, to the corded state and the Glass deprivation Co., rights of vested 328 U.S claimed L. process property without due law or Ed. 1620. Iu the ease of Zarati S. S. Co. compensation Bridge Park due not discussed —matters Court. F.2d the District court divided toas whether general principle rights parties and claims 3 The stated also there decisions, pressed “intertwined”; were g., several other recent e. were Corporation here, not, v. Petroleum Heat & so Petrol intertwined that one de pended finding F.2d Power Vision, Audi on a of the absence of the Inc., Mfg. v. RCA other. 574; Libbey- 147 A.L.R. except identity so should be this substantial noted not change Propper Petrol right this added support appeals. piecemeal detail represent Power Corporation of AKM its Petroleum Heat interests creditors, Co., Cir., cases the situation oft-considered par central Here the one of a claim affecting cited. more authorities two or royalties directly adjudication collected ties fact concerns AS- by AKM for cannot definitely settling AKM without AS CAP for had be- legality rights fact of offset CAP and the other. standard This title That tween them. AKM’s and after the rules both before does adjudication have devolved to must to all before importance of change finality appears or lessen the obtains. The rule itself add, here apparently question. may though questioned, and never to have been im- added, issue legal naturally application of some in at another details its have as may problems. portance; presented but such an arise issue times Hohorst v. dispute. here any Co., supra; tо a Thus parties Hamburg-American Packet question might arise as conceivably Corporation a v. Oneida W. & S. Nav. Job Taylor 521, 697; 357, of sue capacity and 252 U.S. 40 64 S.Ct. L.Ed ASCAP; arise Smith, 330, certainly question 15 Bank of Rondout 156 U.S. v. attempt make 358, 441; has been made 39 L.Ed. Hunteman New S.Ct. v. Further, party. Inc., assign- Service, AKM itself F. Orleans Public 5 119 by parties 465, ment or by act law 647, act of 2d certiorari 314 U.S. 62 change 519; 89, does not the cause or of ac- supra. S.Ct. 86 L.Ed. cases cited tion, though complications. applied, add As the rule has not been extended Here, example, pos- have seen the to claims receivership we in intervention lengthy sibilities of litigation proceedings sub- or which otherwise Have been stantive issue toas existence of bal- separate treated as and distinct from royalties. ance due from the the original proceedings. Miller, While Collins v. parties, vigor by 364, 370, 371, and in ability shown 347, U.S. 40 S.Ct. 64 L.Ed. arguments, their Further, made briefs the 616.4 fed advent the new receivership issue as the effect eral rules permitting substantially unlimit interest, one of ap- joinder remains still one of provisions ed claims led to the plying comparatively principles 54(b), few Rule Federal Rules Civil Proce undisputed facts, opin- dure, Judge as Coxe’s separate ascribing finality to claims ion assign- separate transactions, discloses. The mere device of even within the ment, voluntary law, or act of single is not an action, confines aof civil adequate Supreme Beardall, basis for the overturn of the set- in Reeves v. appealability 283, 1085, rule 1478, tled federal 316 U.S. 62 S.Ct. 86 L.Ed. interlocutory granted by orders not are holding we Apparel California special supra. Moore, Inc., statutes. v. Studer Creators v. Wieder of California, below.” been consolidated prize like final causes of application ceeding, tervening petition to authorize final as “to rule the whole tion to This termination cases this leading case, has been its general An earlier subject-matter action intervention theré: rule nature, all property appeal involved,” subject and thereafter independent treated which “The parties” of matters appealable application without general receivership presented and as to seeming stressing holds without adjudication occurred final, and “as to libels had litigation, litigation must awaiting various distinct excep pro in it has been cited desired. former Not all cussed claims were Dock No. ness 22.13. Chicago dated Great compare Wall. L.Ed. explanation libel. Lakes in 2 Moore’s Nyanza Here, these 819, S. S. question in the “interposed” distinctions made as to the Towing too, Brandéis, exceptions S. U.S. S.Ct. U.S. S. Co. v. Jahncke a definite rule is to be 637, Hohorst Federal 819, Co. J., interpleader certiorari denied Supreme in the consoli 18 L.Ed. United the last 253 P. case, supra, St. clear; Practice, Joseph- States, Court. times 613; 635, Dry wit- dis- § really ASCAP purpose contention. Hence 162 F.2d 893.5 While how application, partic- clear, preliminary difficulties decisive skirmish will be its this circuit,6 sug- on the ularly yet this ultimate result is not disclosed. led to 54(b) the amendment to Rule gestion of Appeal dismissed. require- specific of more in the direction FRANK, Judge (dissenting). Circuit finality amendment ments of —an I dissent because mark- this decision has adopted, yet effective.7 has been but is precedential significance (since ed I think purpose plan to In all this it overrules many Supreme decisions principle; indeed it has federal modify the Court, Court, Circuit strongly Catlin United reiterated. Courts) distinctly because it 229, 233, 234, harmful U.S. reasons, parties appeal. to both to this My and see also States detail, more in follow. Florian, U.S. L.Ed. 1105. injustice may easily Grave stem from application, regard without a to the nice depends While this rule federal thus particular case, of a of wide general- policiеs, general principles Cat- “piecemeal izations appeals.” Ap- about States, supra, upon its lin v. United moment, parently, at least for my col- case, operation particular yet scope in of a leagues (although somewhat reluctantly) appropriate suggest it doubt deem For, recognize. support so in of their con- any ultimate inconvenience here whether (which contrary clusion is to the of desires application in- from the of the rule is parties, earnestly expressed both in their parties not state a dicated. do that briefs) judgment the that is not final and Propper fiduciary title before freez- the appealable, my colleagues say that enemy away would do with the ing order Propper lost a mere “preliminary skirm- taint; the unless is so whole this ish,” (so they assert) since the court below procedural dispute may have more well only Propper decided that does have not aspects. Assuming than the substantive against “formal title” to the claim correct, Propper decision below to still be A.S.C.A.P., (2) they and imply he interloper; judicial he state is: not a substantially position the same as was he protect preserve officer with duties and judgment participate before that the his the assets of the estate committed against trial in the district court A.S.C.A.P. charge. Though may appro- not he be consequence the judgment of That the priate properly he can party, formal con- superficial, not so and that dismissal of this of ASCAP’s the test merits claim in appeal may very have substantial adverse right any AKM raise of and issue Propper plaintiff, ap- effects on both and rather than which affects AKM the case think, from pear, following: position plaintiff’s And would himself. weaker, possibly seem at least no and complaint parties to be joins Plaintiff’s two de- only stronger, judgment fendаnt, if final comes receiver, Prop- even A.S.C.A.P. and , complaint per. the court has heard some defense fall and defenses separate AKM parts: (a) behalf the merits of the into two of Counts 1 and eases, questions; undoubtedly like Metro-Gold- Collins v. not Such settle but wyn helpful greatly narrowing it will Pictures be as Scheinman, potential dispute suggest Zalkind v. area of and and as ing 895, certiorari denied 322 U.S. a form of there 139 738, reconciliation of dis puted general approval deal- issues. For claims, separate amendment, Ilsen, with and distinct Federal Rules Approved here. with not Civil Procedure hence Amend 6 Probably ments, Armstrong, state induced the local Rev.Ed. . interlocutory allowing Advisory practice Recommendations, numerous Committee o (cf. appeals, id., for is said to F.R.D. F.R.D. jurisdiction pos- 126); choosing federal 56 Yale L.J. 47 Col.L.Rev. 239, 254; Advisory Harper, Fed- Practice and sible. Civil cf. Committee’s Courts, 1946, (b) Report June, Note to F.R. 54 its eral direсtly pp. amendment Since this 70-72. courts, applicable in district it Conceivably, colleagues might my plaintiff’s solely 3 relate assertion Property judgment have it claim, construed that would the Alien successor of as Coupled way Propper’s affected Custodian, no rela A.S.C.A.P. money trial, e., they prayer might tion to the have con i. with counts is a those an- but a judgment against its strued tentative in ad warning A.S.C.A.P. that, swer, judge of vance pleaded offset at the end A.S.C.A.P. trial, Propper partici A.K.M., did in which money owing to owing pate any fully not ask excess had solely judgment, (b) judge, should Count 2 deals A.S.C.A.P. A.S.C.A.P. lose, might Propper alleges relating to Propper; would not be with hold purported entitled his title to A.K.M. to recover —unless meanwhile But, against A.S.C.A.P., judge changed his mind. doubt including fact temporary char Propper, obviously before while still less its strained because acter, receiver, my colleagues A.S.C. had made demand on relied A.P., interpretation freеzing judgment.1 issued. order had such an Coupled They Propper, dis- prayer, count is concede that this because apart ttie prayer judgment, tinct longer party from the is no will not A.S.C.A.P., be, that “the ad- judgment, court we reverse that find unless * * * therefore, judge Propper that” no that dismissal this “has with the title appeal, assets A.K.M. to play interest in said he be unable role superior sure, plaintiff, party this trial. To col purported acquisition leagues suggestion: of title said make this curious do receiver, Propper, A.K.M., is null void as As is a receiver of he can plaintiff.” party —although as a —“in * * * properly A.S.C. A.K.M. contest plaintiff’s Prop- prayer Pursuant to any A.P.’s claim” and other issues “raise per prayer judgment for a re- effect a —in rather which affect A.K.M. himself.” than moving plaintiff’s on title a cloud to suggestion I That understand to mean this: against judge, on A.S.C.A.P. —the district judgment A.S.C.A.P. were to ask for If plaintiff’s summary judgment, for motion against for A.K.M. an amount A.S.C. due judgment and which enterеd a “ordered A.K.M., it A.P. excess of what owes adjudged that Henry defendant M. A.K.M.”, Propper “in then * * * Propper acquired right, no title at could contest the trial as to excess. that A.K.M., or interest in or the funds” to suggestion that is thoroughly But academic. A.S.C.A.P., by” right, “held “has and no sought For A.S.C.A.P. in its answer has no funds”; title or or interest to the said excess, judgment for an and there plaintiff further it that recover ordered plans to from no that deviate indication Propper, against “plaintiff costs and that Consequently (turning that aside course. have execution fail therefor.” I to under- hypothetical purely unreal sit from a and judgment by stand how that can be said unquestionably Propper uation) will abe my colleagues Propper only decide that stranger to the trial: not be total He will has plain- “formal title.” evidence, no In permitted to introduce examine witnesses, est possible it adjudges object terms that he has or cross-examine to evi A.S.C.A.P., Obviously, by title ‍‌​‌​​‌​​​‌​​​‌​‌‌‌‌‌​‌​‌​​​‌​​​​​‌​​​​‌‌​‌‌​​‌‌‌‍or mo whаtever. dence offered make in- it was kind. any tions participa- tended will him to and bar from which tion the trial stand, will now be- ensue As matters now under col- plaintiff A.S.C.A.P., decision, when, tween and leagues’ only that issue any- trial, will be whether A.S.C.A.P. judgment owed against or A.S.C.A.P. (and thing to A.K.M. plain- entered, Propper appeal; therefore to can then, time, tiff as successor of A.K.M.). first will he allowed be so, prevent creating Had done would have con- result here interpretation strange precedent, sidered de- unwise not have would parture judge’s purpose district dissented. perhaps, order to ensure a fair declaratory final and often been that an order is held court assert this that If, appealable which shuts out claimant erroneous. judgment him intangible), tangible al- wins, (whether will be assets appeal, the case that he on others, trial, though joint be- the claims of not of this for another time remanded claim, remain un- Evidence character barred Propper A.S.C.A.P. tween (other ad- determined. than first trial introduced at to be by A.S.C.A.P.) have will missions kind, In of that a landmark decision perhaps That alone offered anew. Withenbury 5 Wall. v. United except for Propper, harmful be too these: Con were out, delay. turns long for the condem solidated libels filed were plaintiff appeal, as between later war, captured nation, pri?.eof cotton as a legitimate was the sole Propper, latter Doyle property. Withenbury and other & A.S.C.A.P., will the result claimant prop interposed portion a claim to a been con- trial first be erty. claim. court do right to plaintiff, without ducted wholly yet With libels as untried important wit- may mean that so. This undecided, Doyle Withenbury an & counsel, nesses, interrogated plaintiff’s Supreme appealed. claimant testified as to embarrass will have so denying the For trial. prejudice at the second Doyle final and claim wаs may give witness, questioned, carelessly so, rejected the appealable. doing later may answers used careless which support following argument, made trial, when, subsequent impeach in a him argument appeal, motion dismiss questioned. Conse- carefully is more he parallels the views stated strikingly appeal quently, dismissal of this without “The inconveni colleagues here: by my merits, seriously may decision on the * * * admitting a cause ence of Propper. detrimental bring admiralty can be divided plain seriously harmful to may also be it, il up successively parts distinct trial, if, ob he For the end of tiff. fact lustrated in the A.S.C.A.P., we tains Doyle Withenbury & then, appeal judgment, from that claim, appeal taken on their leaving declaratory present hold the erroneous against it in cotton the libel the court Propper; will result the below, undisposed of, parties, but that other incurred, plaintiff have without will be that namely, More, Le claiming part a of expense recompense, of the considerable libel, on the adverse same cotton same' but trial claim conducting a to vindicate a Withenbury Doyle, toly & have taken also no Doubtless interest.1a he had appeal, and entered it here. Thus we Propper in plaintiff joins with reason that claimants, adversary sets of each two present appeal. of the resisting dismissal case, main splitting and from off from illustration fact have here of We another, ap coming one here with their appeal of an from er that disallowance peals, while main case still remains in impose need may dismissal order roneous appeals C-an thus court. inferior party in expense whose favor on less indefinitely evolved one body of that was order whose and at instance not; case? think but reject We that on made.1b parcel ing all the claims this pro cotton, is no means cоurt situation below 2. This sort of should have circumstances, has ceeded to the question prise, In it determine novel. divers Mfg. Corpora penses Angeles paid by 1a he incurs will be In Brush the tax- Los 701, payers. James, 707, 47 S. 272 U.S. tion 1b private 481, 286, litigant, of a the Court the case L.Ed. Ct. practical deprive Taft), may, indeed, terms, (per Justice “One Chief said any appeal complaint general ad him of take the of the whatever: to causes expense appeal justice costly is the of defeat on a chance after ministration * * may litigants expensive gamble. involve too entails plaintiff That consideration him to that induce immaterial should be Attorney General; accept an the ex- settlement. unfair here is support what to do with be the dismissed that to decide sufficient both cotton, the an proceeds then en- If and the non-dismissed claims. Upon e., is additional (i. er a swer substantial decree. such a decree if final dismissing" parties might needed), evidence order appealed or all due if appealable; claim is final one form.”2 appeal- yes, the answer is the order There is no reason to believe Cir., Scheinmann, 2 able. See Zalkind v. slightest would have made difference 895, U.S. denied 322 certiorari F.2d Supreme Court when it refused 738, 1055, 1572; Zarati 64 S.Ct. 88 L.Ed. adopt & argument, Withenbury Bridge S. S. Co. v. Park Doyle, instead on its asserting claim 377; Foundation 154 F.2d Musher initiative, own joined party had been aas Inc., Inc., 2 v. Alba Trading defendant, ra here. No F.2d certiorari denied tional for such a distinction can 517; Vendóme L.Ed. Lewis v. Indeed, suggested. doctrine Bags, certiorari denied Withenbury v. United States limited is not U.S. cases which the claim of a defendant Cir., 113 Corporation, 2 v. F-R Sidis Pub. dismissed, plain recently made we 806, certiorari U.S. Metro-Goldwyn Corpo Collins v. Pictures Imports Treasure ration, (C.C.A. 2), 106 F.2d Sons, Henry Amdur Withenbury where we cited and relied 3.2b United States as authoritative when appeal refused to dismiss an order from an their Thanks observe failure dismissing but one of two claims contain distinction, here, my colleagues plaintiff’s too, complaint ined —and think, overruling a long line decisions adoption after the Rules of (rendered adop before and both since the Civil Procedure. Our reliance the Col Rules). tion of the Those held decisions lins case should appealable the of orders: following kinds dispose my colleagues’ also serve to in (1) An order dismissing claim timation that the Withenbury doctrine is receivership, although creditor cases.2a, prize admiralty confined claims other creditors remained undet 3. We have repeatedly in our ermined.3 An order that de- one party citing interpleader cisions cases Metro- an has no Collins an Goldwyn other, Corporation, supra, rights parties Pictures of other still key question is whether same An evi- undecided.4 denying title dence, additions, without substantial several claimants in condem- 2 Emphasis 819, page dismissing added. 5 an Wall. order of trial court the the 820, 18 L.Ed. 613. Lakes Great Tow claim Cf. nonfederal while the other claim ing Joseph-Chicago Co., (We Co. v. St. S. S. still remains on the calendar.” 635, Cir., pointed F. 7 233 637. there out that die converse 2a necessarily true.) discussion The Hamburg-American 3 v. g., Hohorst Sec, Holding e. Hatch v. Morosco Co., 262, 265, Co., Cir., Packet 148 U.S. 13 S .Ct. 766, 2 19 F.2d affirmed 279 U. 530, 443, L.Ed. shows that 218, 310, 37 no 669; S. 49 S.Ct. 73 L.Ed. York suggested tbat basis for restriction. Fowler, Cir., Inv. etc. Co. shire v. 2 78 2b 56; City County of the cases cited deal with the Some F. of Denver v. problem Oursler, Cir., Stenger, 809; raised Hum 289 v. 295 F. 8 American 238, 583, Shoe, 53 U.S. 77 L.Ed. 1148. etc. Brake Co. New v. York Rail point they since, ways, 523, Cir., 527-528; are as we said 2 282 F. cf. Scheinman, Cir., Co., Cir., 2 Zalkind v. 139 F.2d v. H. Batterman Odell 2 223 F. 296; 897, 292, 295, 738, Dodge Norlin, Cir., certiorari denied 322 U.S. 895. v. 8 1055, 363; 1572, Miller, 64 S.Ct. where a F. 133 v. Collins 252 U.S. ‍‌​‌​​‌​​​‌​​​‌​‌‌‌‌‌​‌​‌​​​‌​​​​​‌​​​​‌‌​‌‌​​‌‌‌‍joined 368-370, 347, 364, nonfederal with a federal 40 S.Ct 64 L.E1 616. sufficiently claim, Gorgas-Pierie “if the two claims are Mfg. 4 Bank of Taiwan v. jurisdiction 661; Co., Cir., 600, Standley distinct oust federal 3 F. 273 cf. they claim, Roberts, Cir., 836, 839, then nonfederal also so are v. 8 59 F. 840. appealable distinct render final

MS 814, Cir, F.2d dustriаl 154 2 dismiss- proceeding.5 (4) An

nation order 859, 66 S.Ct. in certiorari plaintiffs 328 U.S. only claims of some 1353, 1639, action, 90 the court divers held where the L.Ed. accounting trust was An defenses joint.6 (5) striking order one of several plaintiffs’ claims were not interlocutory; question was wheth- is a when denying intervention order. per- cases, er or not the stricken defense was right.7 In those matter each of (in my required missive counterclaim which event colleagues’ thesis would final), ma- order appeal. dismissal of the jority was such defense My colleagues cite cases—such 5. why comprehend counterclaim. cannot Co., Packet Hamburg-American Hohorst v. such decisions are deemed here. 443; 590, 262, 148 37 U.S. 13 S.Ct. Cir., Co., Nor Distilling pertinence 2 can I understand v. Porter American Moore, Cir., 1012; v. 153 902.7b Co. Studer F.2d Photometric Products F.2d 849; (assignee) Cir., There successor bank de Radtke, United 157 F.2d Cir., deposit, positor asserted title to a Bressler, 2 ex rel. Weinstein v. States bank, against also defendant bank and 403, each of F. 2d 405 — in Comptroller, the State the bank parties, order of several dismissed but one Comptroller, un to the having transferred think liability joint: being asserted statute, de state amount der a decisions, holding not final such posit property.” order “abandoned An parties, in- joint wholly order Comp dismissing the action apposite. distinguish not bother I shall non-appealable, troller because the was held colleagues other cases cite. pivotal as to the suit continued bank. typical. Corpora following are In Petrol evidence, precisely fact was same Inc., tion & Power v. Petroleum Heat Co. sup less, required no more 327, F.2d order did not port the claims both defendants.7c claims, several dismiss course, expedition not he Of should interlocutory was held for the reason procedure. never the sole aim of should damages remained to be determined. preventing expense at the purchased Vision, Inc., Mfg. Audi R.C.A. reason, For that a fair trial. this court 136 F.2d 147 A.L.R. aof others have discountenanced use (one opinion stated that the claims dis writ summary judgment, based aon mere not) “are missed, connected record, deprives one ten when proper meaning turn and parties oppor affording of a trial him the single application leng of a sentence tunity important to cross-examine witness * * * ,”7a thy written contract In Lib- credibility may critically affect es whose bey-Owens-Ford Sylvania In- Glass Co. v. decision on of fact.7d issues Chuoke, 973; State of Texas 193 F. Barrett v. Commercial Cred- App.D.C. certiorari denied 329 U.S. 296 F. State Texas Har cited in Soren- discussion cases 861, 864; County, ris sen v. United Rouge Co., v. River cf. States 7a 411, 413, 414, exposition of the facts of 339; Morgan, dissenting opin Williams v. 111 U.S. in L.Ed. Audi Vision case Libbey-O 684, 638, 4 28 L.Ed. 559. v. S.Ct. ion wens-Ford Glass Co. Sylvania Cir., 6 Cir., Corporation, Joyce, 10 134 F.2d Industrial 2 Crutcher v. 820, 813; Peoples 814, 809, & Baird Bank F.2d 6. cf. v. 154 note 7b 1001, Moore, Cir., Co., Cir., 2 156 3 F.2d 1003. See also Studer v. 120 Trust Pipe 7 g., Line F.2d 10. Missouri-Kansas See e. 7c Moreover, 502, on the face com- States, of v. United 312 U.S. 505, Co. appeared plaint, 975; action 665, 660, he 508, L.Ed. 61 85 S.Ct. liability. joint both defendants for a B. Trainmen v. of Railroad Brotherhood 519, O., 1387; Porter, Cir., U.S. 2 154 F.2d 7d Arnstein v. & 331 S.Ct. 67 Gumb Pitkin, 545, 548, 464; York, Bank of 2 113 5 Bozant v. New v. U.S. S.Ct. el 1128; 787; 016, Cir., Ins. F.2d Doohler Metal Fur L.Ed. Universal Co. v. 156 28 States, Cir., 2 F.2d v. United Time Molasses niture Co. Old Brooks, 926; Cathay 130, 925, Dixon v. American TcL Trust v. sometimes, here, expedition ciary freezing But title in before fairness, appeal enemy essential taint deciding away is with the do ” * * * course, Supreme has made parties a fact Court do not so which the Of misinterpret state. colleagues Plaintiff’s my merits, I think brief clear. on the which attempts Supreme decisions. with vigor the relevant judg- sustain the ment, another if war with does not much They one treat as intimate that is there infirmity truth vindicate such (“enemy lines of cases which taint”) two Propper’s brief, line— expedition: plain- title. In policy of The that tiff represented by maintains such cases as Cobbledick v. that the infirmity derives solely States, 540, from freezing U.S. 60 S.Ct. United order. Catlin United all, surprised my 8. that I am Above 911— U.S. 89 L.Ed. colleagues rest their should decision complete opposes “piecemeal” appeals ain alleged doctrine that a where' so-called ly dispute, appeal any such unified because subject “central core of facts” is the matter “delay progress the trial” [309 then, more, claims, of two without the dis repre 542]; U.S. the other — missal but one of is not those claims such cases sented alleged final. this court has That doctrine States, supra, Bear Reeves v. repeatedly repudiated. previously not As dall, ed, persistent (against we have often held permits appeal immediate 1478— dissents) If, despite a test this: an order distinct dismissing one several “central core of common so-called facts” claims, again prevent delay. claim and a non-dismissed dismissed Vision, Mfg. Co., In Audi Inc. v. R. C. A. claim, respect decision with to the dismissed supra, majority opinion set forth the requires consideration substantial following truly reasons for disallowing relevant which evidence addition to that

'“fragmentary” appeal, reasons which all of claim,8 is relevant the non-dismissed pointless (1) here: “waste then dismissal order is final. expense”; argument cuts time and dissent, supra, cases cited precisely way the other in the at bar. Zarati most recent of which is S.S. Co. disposi- differing “mischance F. Bridge Park essentially single what tions con- 2d case dealt with consoli 379. That issue”; trolling no could appeals dismissing from orders dated “mischance” we entertained defendants, complaint to two of three “emphasis appeal. “shifting” (3) The charterer of being third defendant form”; shifting from merits no such re vessel. We would occur here. The “abbreviation appeals fusing entertain the beyond of a lawsuit feasi- really what “intertwined,” issues were since the claims ble”; eminently the “abbreviation” here is аgainst each three defendants were of the feasible. “predicated separate sepa facts and support position theories, grow further of their though they rate even out merely Propper, judgment, single lost venture” business liabili skirmish,” “preliminary colleagues ty “upon appellees depended say: acts”; parties fidu- later do state that a effect their own “The and we interrogatories also Tel. sions on addressed to Envelope Co., respective parties. experience Avrick Rockmount getting shown we cannot be sure that (cid:127) says expedients,” “All manner Dean clear-cut statement advance * * Pound, way, ap- been resorted to in this plied, “have the law cutting mueh, to at a written arrive settlement of we not are out too dependent trying ac- facts on credit to be to the end artificial be they impression controversy.” corded witnesses or case instead the real particular Pound, Appellate ‍‌​‌​​‌​​​‌​​​‌​‌‌‌‌‌​‌​‌​​​‌​​​​​‌​​​​‌‌​‌‌​​‌‌‌‍make trial court. Procedure in Civil expedients varying These forms Cases 29. 8 intended to sift out the crucial fact Or vice versa. by a series of averments and admis- history has doubtedly fruitful. been The

pointed here do “the out that orders stated, idea, briefly is this: of that lia the charterer’s affect determination of phrase yielded action” often “cause bility.” injustice (as e.g., to “re reference with has, applied those cases by us in The test complaint lation in which a back” v. said,9 by Reeves we sanctioned been amended, of limita was statute 1085, 86 Beardall, 316 U.S. run, “legal tions had to assert different that, ap- me L.Ed. 1478. seems clear to right”). campaign In eradi laudable here, against judgment plying that test devices, coupled injustices, cate such two For, although Propper plaintiff’s final. together, employed: (1) Relying on were Propper’s claim relates to codes, procedural language of the A.S.C.A.P., so title the claim concept “transaction,” rather than facts, is a central core of that there so-called therefrom,” “legal rights urged arizing was yet germane substantial evidence subject complaint.” matter of the as “the germane one claim is not to the other. purpose, (2) For this “transaction” was parts differentiation two between having events a “central core defined as relating removal this suit—one 10b use, inappropriately, the Not facts.” Propper’s rights cloud as a asserted combined campaign, of these ideas title, plaintiff’s relating other and the sponsors.10c “pragmatic” by its called been plaintiff’s for A.S.C.A.P. laudable campaign eventuated in As that money at least as to be —seems successes,11 sponsors rightly those marked as that between the claims hearty approbation. earned Beardall, supra. Reeves v. adopt “central now If the so-called we of them some have not content test, should, think, of facts” core Although their earlier with achievements. regard as our henceforth over-ruled all objected rigid “unpragma- they had a — supra, point 3 decisions cited own action,” they tic”—definition “cause of many nothing of the cited say cases “transaction,” proce- insist that in all now 4, supra, well as v. contexts, must defined in but one dural States, Bear- supra, Reeves v. United practical way, regardless of the conse- here, dall, Accordingly, supra. decision Wherefore, say, quences. Rule precedential significance for its because of “transaction,” it 54(b) the word includes importance many litigants, future has an mean “central having events must injury par- transcends the it does the applied in facts” and must thus core of Inconsistent as ties to suit. appeals. I believe that context of th.e previous and with our decisions by- advocates this thesis are motivated circuits,10 it in other deserves and those verba] symmetry to attain desire iesthetic hope the attention it will receive consistency, the ac- and verbal heedless of Supreme Court. eagerness results. their trans- tual rigid plant a of “transaction” to core” is here be- definition 9. The “central idea appeals, they appeals quite transplanted different area of field frequent uncharacteristically where un- abandon their field10a from another distinct 64 S .Ct. leagues’ consistent Fischer, Franklin Baker, Eor recent 120 F.2d 325 U.S. Zalkind 1055, 88, decision Fire Ins. certiorari with the Moreno v. United cases in v. 135 F.2d here, L.Ed. 1572. 144 F.2d Scheinman, reasoning denied 322 U.S. see, 130; Hanney e. g., circuits, certiorari Lydick Kasishke States, Cir., col- in- v. trived fields son, tice Memphis 192, Code ton 10a 10c See, 10b 11 See, “relation This The distinction Pleading (2d seems with an S.Ct. e. Cotton e. definition, 77 L.Ed. 619. 145. g., g., Moore, back” in to be “eye United States 1382; Oil Ed.1947) to trial recognized it is between Hammond-Knowl Unitеd said, Federal Prac Cf. discussion convenience.” 126. States v. Dickin Clark, con two wise commendable cautions about the function concept which in serves procedural and, virtues of flexibility particular in situation”; with “dealing when stead, procedural- problem stress the virtues uni which under arises such diverse formity. forget They that one with a true circumstances, procedural rigidities should 11c attitude, “pragmatic” over-simpli shunning be avoided.” fications, evaluates idea its concrete I ruling, my think that a like that of col beyond results never extends leagues case, only in this not which will “operationally” up where shows long ways delay cause but also in other badly.11a cut, ought A meat axe will not may prejudice ought seriously parties, (except necessity) pare in dire be used to not to be merely made satisfac afford finger-nails. Peirce, “Pragmatism,” said “is tion to those interested maintaining application principle the sоle theory. proportions procedural of a aesthetic logic by Jesus, recommended ‘Ye know important delight More than such verbal ”11b * * * Adop them their fruits’ symmetry (as Supreme Court I believe tion pragmatist of a does not vocabulary recognized in Beardall) Reeves performance; pragmatic guarantee alone liti of needless unfairness avoidance n such locutions may accompany anti-prag A how gants. theory, no matter thinking. Substituting matic word form, be a beautiful outward n “transaction” for cannot action,” what “cause of if, theory, practice, wise it works actual Supreme recently of “cause said Procedure, injustice. n of action” substantial pertinent here: We becomes heard, should “hand-maid” often be but the danger guard against be on “the should think that here the servant justice. determining rights based definitions” n ofa “transaction” which mastery.12 “unrelated to achieved 11a “pragmatic” razor, “Enti- Occam’s we need another: attitude Such is the theory beyond principle, physical ties not be neces- “That should reduced science: sities”; Burke, dignified Motives which A Grammar of as scientific ‘law’ is or (1945), promotes attainment of See discussion citations actual 324. (cid:127)best Pennsylvania Co., 2 To R. transformations. Ricketts of concrete control 757, 764, 765, experimenter end, 164 A.L.R. Eu will use geometries, non-Euclidean 387. clidean six, Feibleman, 11b (cid:127)geometries and of Introduction four dimensions Quoted systems (1946) ordinary algebra Philosophy 300. Peirce to the supra. Dickinson, 11c equal ba; employ will ab he United States does promises suggestion, theory agree (cid:127)quantum with re 12 I cannot undulat.ory theory along by my colleague Judge with an sults twice Clark made productive”; Fries, (see Libbey-Owens-Ford Company Science where it is Glass ,T. Freedom, Sylvania Foundations Industrial su and the (1944) 113, Philosophy Corporation pra, 116-117. v. Petroleum Petrol Intelligent Bridgman, Inc., suрra), Individual and The Heat Power Co. 54; Bridgman, Logic Society (1938), 54(b), amendment Rule which is Physics passim; yet operative, bearing De of Modern has a on cases de Analysis mogue, An No Fundamental cided before its effective date. But Legal tions, suggestion Modern following in the volume French invites the interest Philosophies (1921) Frank, speculation: strongly suspect (1945) 327-328; judge thought and Freedom Co Fate hen, the trial here he was en tering judgment. Suppose, then, Transcendental and The a final Nonsense Approach, that, Functional when this court, Col.L.Rev. case resumes in the dis judge, trict the revised Long ago operative, warned Aristotle that “the Rule becomes and before the practical judged trial, declaratory truth operations matters is judg re-enters life, Propper, using appro decisive fac- ment priate language them.”; finality tor is to be found in Nicoma- in accord Ethics, X, 16-22; 8, 1179a, Rule, ch. e., chean ance with the revised i. “That Cоnception McKeon, just delay.” Aristotle’s of The (I is no reason Development clearly so, and The Nature of judgment Scientific think he can do if the Method, History 8 J. of Ideas interlocutory, as it now stands is (1147) 3, colleagues hold.) judge acts, If the sagaciously Kenneth Burke warns re-entered become principle appealable? .correlative known as once they speedy, inexpensive determination 54(b), but

My colleagues cite Rule every interpreted that pur with If says that the action.” which overlook Rule mind, purpose Rules just, constantly in will “to secure pose is Rules uniformity words, in federal Rule confer insure that does (1940) 141, power, judge courts. See 55 Yale L.J. 149. That sider the notorious absolute on a district by failing merely using is notion: Con- the for fatuous a to use uniformity Rule, in set to determine lack mula forth that in judges. sentencing by appellate jurisdiction? he ren the district Can our appealable If to allow in kind there is to discretion an of a der terlocutory appeals, appealable as, instance, wiser an seem would for heretofore appeal pleading relating mat in the to vest that discretion to a minor order ter? Courts, likely by example, be, Or, than not us for are far more can for judges prevent formula, errors in immediate see the an district denying judges, appeal com orders of those interven the prehend delays from an order by injustice right? One caused matter when will be tion it is a where wonders, reviewing been told in It has orders. ice have such since often that, by suggested stat rules which authorizes therefore been that the statute empowered, ute, does practice courts be so district the circuit courts in the ju appellate provided changes that discretion the exercise of in not authorize risdiction; by any finding Moore, Prac in turns on such a Federal permit appeal tice, Vision, Inc., would R. court that not to C. A. Audi 3155: injustice. 621, Mfg. 147 A. work serious Zal 136 F.2d Clark, (2 Pleading Scheinman, 895, ed. kind v. K’9 Code L.R. 3b, 1947), Perhaps (although I am note certiorari denied 322 U.S. 1572; concurring sure) is this: The Rule the answer at all opinion Vision, district Audi v. R. C. to make decisive the Inc. A. is intended finality only Mfg. Co., 625-628, judge’s 136 F.2d determination appeal Indeed, right of been 147 A.L.R. 574. a new stat would have such might oper discretionary well like the Rule went into ute confer doubtful before bankruptcy eases, power now, ation. many instances, literally, circuit courts If the were Rule construed obliged interlocutory further, go might frivolous to hear some as to most unfortunate appeals. exper- granted, results, such Were discretion since judge, the federal that mis- courts would not encounter ience teaches a trial experienced takenly his the difficulties York order is convinced that- New flaw- many where, cases, appeal inter that be use- courts would less locutory appealable expedite unwilling orders are as of less, well be right. If, еxample, its review. may trap literally construed, judge, federal his statute rule litigant: appeal discretion, If fails to from an or- a order he to declare final an refuses interlocutory believes intervention he der which he denies an may find, non-appealable, then, right, he- when notwith- he that is a matter standing appeals Pipe from that order after close Line Missouri-Kansas Co. appeal suit, of the entire earlier v. United necessary, cases, with the that his and similar result 85 L.Ed. 975 appeal lapse party is of time. Ac- will be barred the intervention cordingly, proposed appeals postpone appeal obliged stat- new his until think, provide trial, should, something- entry ute last- weeks, ing perhaps this: Until like all the from issues for several barred; determined, suit entire have been when that he has which judgment appeal entered, appeal will be classified his as “discretion- will neces- ary”; sarily failure seek a “disсretion- lead not reversal ary” appeal bar, no appeal shall be because of order but also to donial-of-intervention lapse time, un- taken retrial. For more when a remand discussion, issues all the have been determined. consider the result fortunate interlocutory prevent appeals Vision, concurring opinion To in Audi in the - procedural unimportant rulings wholly Mfg. Co., Inc., 2 Inc., v. R. C. A. opposition desirable. to inter- A.L.R. note locutory appeals (expressed by pro- Murphy, Thompson some reformers), suppose had then cedural that the amended Rule appeals emphasize procedural judge such district issues existed appellate courts, logically declare order final. refused to his regard suggested lead to what would as a vest absolute back- step repeal judges stat- ward federal district discretion finality, —the appeals authorizing appealability, from or-- оrders utes thus achievement.13 represent admirable more they will become but

Otherwise procedural “reforms” courts.14 justified criticism

earned BOTELER.

YATES v.

No. 11444. Appeals, Ninth Circuit.

Circuit

Oct. injunctions relating delay being ders home from cer- home interlocutory admiralty technicality”; Attorney tain Remarks orders patent Cummings cases. before the House General Judiciary concerning “But courts do not Committee exist for lawyers; judges. do not Rules. “Procedural means rules are exist They end, litigants, litigants an end in exist for to an themselves. This are forgotten”; possible procedure too often entitled to best a truism all Ed.) ingenuity Pleading ‍‌​‌​​‌​​​‌​​​‌​‌‌‌‌‌​‌​‌​​​‌​​​​​‌​​​​‌‌​‌‌​​‌‌‌‍(2d Clark, that human can render. Code jus courts are established to administer viii. tice, you justice jus English “Hilary cannot Illustrative are Orogate’s constantly being Hayes, tice is Rules” thwarted delayed by Dialogue Spe labyrinth turned aside or Ye Shades Case: A entanglements. Reform, reprinted Pleading Manifestly, in 9 technical cial Holdsworth, * * * profession earnestly History English (2d Law whole * * * ridding Ed.1938) desirous the courts

Case Details

Case Name: Clark v. Taylor

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 15, 1947

Citation: 163 F.2d 940

Docket Number: 257, Docket 20580

Court Abbreviation: 2d Cir.