*1 Court should be reinstated. Law of course determines legal consequences of conduct. But both the Citi- zenship Act of 1907 and Nationality Act of 1940 raise issues of fact, allowably the District Court petitioner. found the facts in favor of the expatri- Since ation does not follow on finding, the basis of such judgment of the District should not have been Supp. disturbed. 73 F. 109.
DICKINSON v. PETROLEUM CONVERSION CORP. Argued No. January 150. December 1949. Decided 1950. submitted and Samuel Hershenstein
Solomon Kaufman petitioner. on brief *2 a brief argued the cause and filed
Alexander Kahan respondent. opinion of
Mr. Jackson delivered Justice Court. on by this case turns only presented
The issue subject appeal, of a purposes of a finality judgment for already is for- writing of judicial volume on which the against Appeals resolved midable. The Court did however, question, saying, of the decree in of the court against unanimous conviction so precedent in established deference to a constituted but of the same Circuit. differently constituted conflict, we 2d Because of this intracircuit F. 738. That U. S. 811. grant made a certiorari. limited that will a form of settle we cannot devise words we problem certain; but this case recurrent seems and reverse with convictions of the court below agree judgment. its Lloyd,
Something ago, over a decade Dickinson sued promoting been with whom he had associated along others, with Corporation, Petroleum Conversion upon Corpora impress equitable lien certain of the Lloyd’s possession. name and tion’s shares then but the Court complaint Court dismissed the District v. a new Dickinson reversed directed trial. Rinke, 2d Burnham and retrial, 132 F. 805. Before of themselves such other stock Vaughan, behalf company or as subscribed to a fund to aid the holders were allowed predecessor embarrassment, its up against plaintiff claim both They set intervene. Lloyd that the stock involved and defendant Dickinson fraudulently controversy between them They be canceled. demanded that stock issued and also sought recovery $87,310.28 them as unlawful profits secretly realized fiduciary duty. breach of their Corporation Petroleum Conversion also mak intervened, ing the general same allegations demands for relief. Corporation and the class joined of subscribers thus get forces to for one or the other substantially the same remedy against both Dickinson and Lloyd.
This triangular controversy was tried and a decree April 10, dated 1947, was entered. The issue here turns on the character of that decree. It twenty-three recites days trial, filing a decision, opinion, findings of fact and conclusions law, and it “ordered, adjudged and decreed” plaintiff that all of the Dickinson’s claims be dismissed merits; on the that all of the defendant Lloyd’s *3 pressed by claims there his administrator be dis- missed on merits; the the class intervenors have judgment of $174,620.56 against both Dickinson and Lloyd’s administrator, and that a concourse of all these subscribers provided be by which their several claims could liquidated and the share in recovery of each the fixed; that Petroleum Corporation Conversion receive 8,200 shares of its stock the Lloyd’s hands of admin- istrator but that its claim to 12,596 additional such shares and its claim to over 244,000 of in possession its shares of the court be dismissed; and Petroleum Conversion Corporation was directed to issue new shares to stock- holders of another corporation, provided that, any shares were not distributed for any reason, they be rede- posited with the subject court to its further order with jurisdiction retained the court supervise to the dis- tribution of such shares. It dismissed all other claims of Petroleum Corporation. Conversion
From this decree Petroleum took appeal. no Dis- trict Court went ahead with hearings to determine claims of over seventy members the class to ag- share the gregate recovery against Lloyd’s Dickinson and adminis- a “final signed 3, 1948,
trator. the court August On those recovery as between the apportioned decree” It that “the issues reserved claimants. recited 1947, having April, day herein dated the 10th decree decree . . . the said been determined the any final.” It made no issue hereby made decision as way changed in no the involving Petroleum It awarded costs which had also it. no but made award decree, been the earlier settled against Petroleum. ap- bankruptcy
Thereupon receiver Petroleum’s of this as dismissed pealed from much 1948 decree so ap- On motion dismiss the the claims Petroleum.1 only granted peal, chief and the one we the appealed Corporation could have review, whether the only decree, it could from the whether motion, the In deciding decree.2 said: court, it is
“In
of all
the view
members
no
constituted,
make
difference
now
this should
Petroleum Conversion
whole counterclaim of
disposed
April
of on
finally
Corporation
been
at
end
action was
tenth, 1947;
as to
right
it had
denied
though
as much as
final,
more
indeed,
judgment was
all;
at
intervene
petition
the denial of
because, unlike
say,
so to
relitigate
bar to
effort
intervene, it was
*4
determined.”
511 appears what same Circuit sustained contrary position, to be a it held the earlier order not appealable present appeal. and hence no bar 173 to the F. 2d at 740-741.
Half a century “Probably no ago lamented, this Court question of equity practice subject has been the of more frequent discussion this court than the of de cases, conceded, crees. . . . The it must be not alto are gether harmonious.” v. Toledo & Ohio McCourkey Co., R. 146 544-45. Cent. U. This lamentation S. equally fitting intervening struggle to describe the courts; sometimes to formula that will en devise compass all other to take hard situations at times ship cases out from under rigidity previous declara tions; choosing sometimes one sometimes another of compete always considerations that of appealability, important the most of which are the piecemeal inconvenience and on the costs review one danger justice delay hand and denying other.3
The liberalization practice of our to allow more issues and parties joined expand to be action and to one privilege parties of intervention by those not originally danger justice has increased the of hardship and denial of through delay each issue must await the determination of all parties issues as to all a final can before had. In recognition difficulty, present of this Rule
3 policy underlying The cases and the considerations them are Practice, Supp., collected and discussed in 3 Moore’s Federal 172-187; Commentary Code, 495-501, Moore’s on the S.U. Judicial (1949); (b), Advisory Report 507-518 Note to Rule 54 Committee’s (1946); Proposed of Civil Procedure Amendments Rules Proposed Reformulation of the “Final Decision” Amendment Rule — (b), 141; Judgment 56 Yale L. J. The Final Rule to Rule (b) Courts, 239; and the Federal 47 Col. L. Rev. Federal Rule Judgment Rule, Mich. L. Rev. 233. Final
512 promul- Procedure, of (b), Federal Rules Civil
gated. provides: It presented claim for is more than one relief
“When counterclaim, cross- action, claim, a an whether as claim, may direct the third-party or claim, entry one or more but less judgment upon final deter- only upon express an than all of the claims just delay for there no reason mination that is express judgment. upon an the entry direction direction, determination In the absence of such desig- however any decision, or form order other all the claims shall adjudicates than nated, less any claims, as of the the action to terminate subject to revi- form of decision is the order other adjudi- judgment any entry at time before sion all cating the claims.” section, purpose of indicated
The obvious committee, is as far advisory to reduce the notes of uncertainty and the hazard assumed possible the appeal from a either does or does not litigant who It provides we here.4 character litigants to from the District obtain opportunity intending what that court a clear statement of denied, finality, a direction is such with reference accordingly. himself protect litigant can at least on March new rule —which became effective But this 1947 decree at the time 1948—was not effect attempt appropriate not be case and it would beyond this kind ob- on cases of to determine effect prevent coming them may do much serving that down rules therefore, try lay not, will here. We this. embrace case-but Report Proposed Advisory (b), Committee’s Note Rule (1946) Procedure 70-72. See also of Civil to Rules Amendment supra. cited n. authorities
We have held that an order denying intervention to person having an absolute right to intervene is final appealable. Brotherhood Railroad Trainmen v. of Co., Baltimore & Ohio R. 519; U. S. Missouri-Kansas Pipe States, Line Co. v. United U. S. 502. When application the denied, intervention is the would-be intervenor is foreclosed from further action in the case proceedings its cannot him affect nor can he affect As them. the court below observed, it hard to see why the exclusion of an intervenor from the case should be less final when it is upon based the evidence than upon when it is based In pleadings. case, either the lawsuit is all over far so as the intervenor is concerned. its
When claims were dismissed the by April decree of 1947, any grievance that Petroleum Corpora- Conversion fully tion had was point matured.5 At that Petroleum it should governs While make no difference as to the law that finality, dispel it is impression fair to the law and to the court to the decision that this makes the creditors of Petroleum Conversion Cor poration jungle doubt,” any kind, “victims of this of or victims of they predicament guess right are from a “failure to on a legal question.” This to the calls some further detail irrelevant issue of law. April 10, recovery $176,245.24, the
The decree awards Agency Subscribers, from as their with interest to the Rinke persons might These were the who several shares be determined. $600,000, put up funds, amounting out of which in 1926 to some Lloyd profits in of their withdrew secret breach Dickinson and duty Cor- fiduciary those subscribers. The Petroleum Conversion organized of faith poration at the time of this breach had not corporation for predecessor and its claim was derived this fund subscribed. financial relief of which was to the be seen that Petroleum Conversion's claims It will thus illegal upon profits and secret were not based existence of fraud subscribed, separate treasury, fund depletion of its own but of a repayment ultimately beneficiary. might which money put up the profits was awarded to those who had the secret they and was not awarded to had been defrauded which to review was entered Corporation. The decree which it now wants tentative, was not was out of the case. The decree incomplete it; and the was con- informal nor as to case The court’s cluded and closed as to its counterclaims. jurisdiction supervise the distribution reservation attorney. and those of on motion of Petroleum’s own Its interests intervening attorney were handled same subscriber class findings single proposed A at the trial. brief and of fact con- jointly submitted Petroleum other inter- clusion of law were court, court, recovery venors trial left it to the were to the allowed, Corporation should be in favor whether recovery belonged or the subscribers. The court decided the to the deliberately It decided not to subscribers. court’s *7 under these dismissal of Petroleum’s claims circumstances. attorney seeking appeal sought in prosecute March now an preferred of 1948 on to intervene District Court behalf stock- cooperation holders. for two He attacked between counsel the particularly appeal failure counsel to the intervenors and the April 10, charge, judge 1947 decree. As to this the trial said: “In charge petition for is on the so far as their leave to intervene based rights corporation’s Corporation] that the Conversion [Petroleum honestly respect $176,000 fully the have not been claim litigation, presented, history of this set forth in the Court's the as any October, 1946, trial show that such opinion of and the record trial charge was in that connection that the baseless.” It is my opinion and was not suggested "In it was not a final decree that $176,000." for appealable, far it involved the claim at least in so long past appeal was failure to appeal was then But the time by any by statement, nor, appears, bewil- so far as not influenced appeal prosecuted No was of the decree. derment as to fought principal issues and won the who had because counsel it stood. thought justice been done the decree as had case criticized, filed decree, counsel, having thus After final appeal 1, from the final decree. September a notice Petroleum, which meanwhile This on behalf of the trustee was adjudged bankrupt. was inadvisability appeal before of the laid the
But the trustee at once that “The Trustee He advised the court bankruptcy court. Judge sufficient evi- investigation Leibell had his that satisfied from finding he and believes did supporting dence and authorities probably be fruitless.” would appeal to the Court proposes prosecute the attorney who now pointed out that the He provision pro- of the shares of stock and the for further ceedings aggre- to determine the individual shares in the gate recovery did Pe- any allowed manner affect troleum’s rights. essentially What the court reserved was supervisory jurisdiction among over the distribution recovery class of the as the awarded intervenors representatives. class’ only questions were, so speak, internal to the Petroleum no intervening interest. any had longer questions concern with these however and, were they resolved, possibly Petroleum could not The court obviously been affected. selected with delib- eration the issues it would close the decree and those If it would reserve for future decision. it had any pur- open pose any concerning leave issue Petroleum’s objected appeal abandonment, reported to its but that “The Trus- accordingly proposes prosecute appeal petitions tee not to said given approval of this court.” Notice was to all creditors of the Corporation and, having objected “no creditors to the recommenda- trustee,” approved. provided, however, tions of the It was was that, prosecute appeal, liability creditor desired to without upon bankrupt’s 'expenses appeal estate for costs or unless the (a) (1) successful, might Bankruptcy was he do so under 64 of the § (a) (1). Act. 60 11 U. S. C. 104 Stat. § appeal granted. Thereafter, permission prosecute this so to notice of Counsel has also moved to amend both the *8 might irrepa- appeal be pleadings, without which he claims the learn rably prejudiced. issues he would raise we cannot What new from the record before us. any exemplifies such unable to see that this case
Some of us are injustice finality practice should remolded in the rule of that the be appellant. appeal from either decree in order to save this to allow an money seventy more judgment required repayment to The purpose of the of it in 1926. The who were defrauded claimants recovery through money the trustee- appellant is to divert this same subject renewed bankrupt corporation, it would be to ship of where a multiple fees. If litigation distributed and to as to how it shall be finality apply amends for a 1926 fraud we means that the rule early 1950, we do not think that condemns shall be concluded as as unjust. the rule as half a line interests, its
contentions, affecting or not But that half-line was so. decree would have done written. have been April 10, 1947, to the decree of
We hold it and one from which could as a final one to Petroleum6 appeal to therefrom its failure appealed have review the attempt Its its of review. right forfeits the later one is ineffec- by appealing from earlier decree dismissed. appeal its should be tive, and
Reversed. Douglas part in the consideration took no Mr. Justice of this case. decision dissenting. Black, Mr. Justice has been said appeal long a right The simple This a is “final.” is it depend on whether simultaneously all issues a court decides question where controversy. a an end to putting a final order and enters -or leaves some apparently But when an order date, a later doubts open further court action at claims Hamburg- v. See, g., arise. e. Hohorst ap- Co., Finality American Packet U. S. 262. Court, did not parties to this and we tendered any appeal by certiorari, any Dickinson. What issue as take pending do not know and the appeal we its fate will be if such Dickinson, we compiled to inform merits. record is not us Petroleum, original action; not only know, party was a to the too, court, awarded last decree of the we know an intervenor. The And it awarded against former decree did not. him which the costs par judgments specific money amounts favor against him adjudged only general claimants, whereas the earlier ticular deal with liability will be able to class. dismissed, should the Dickinson contentions that obviously incomplete acted, we draw no inferences until has unlitigated issues. information *9 lawyers, commen-
pealability provided judges, have litigants for debate.1 But perpetual subject tators awith their of because have often thrown out court too been “final” that order would be held lawyers guess failed to an Petroleum Con- appellate an of court. creditors prosecuting version who are action Corporation, here, jungle respondent are the first victims victims, will they I doubt be the last doubt.2 also that has (b) Rule 54 despite hope that the new the Court’s jungle. a through charted clear route of Appeals I practical why see no reason the Court respondent’s have free review the chal- should not to regard appealability to lenge the 1948 decree without jurisprudence A system of the decree. rational consequences to failure should not attach inexorable a for the guess right legal solution provided even opinions neither nor court statutes Where, reasonably guide. here, arguments certain “final” be considered may as to which two decrees is find even, appellate should be free relatively an Under such appealed in either decree from. “finality” many circumstances a rule a court could consider pe- without appellate administration orderly relevant earlier merely because finds nalizing litigants Judge Frank, dissenting Taylor, 2d See, g., in Clark v. 163 F. e. Crick, Judgment As Basis The Final See also 944-953. Finality Judgments 539; Note, In Appeal, L. 41 Yale J. Courts, 49 L. J. 1476. From District Yale Federal August adjudicated bankrupt 1948. On corporation was trustee) (later appointed temporary September 1, receiver he Subsequently refused 1948 decree. filed an from the accepted his recom bankruptcy court appeal, but the prosecute the expense to do so without be allowed that creditors mendation bankrupt cor of the By today’s decision the creditors the estate. below, deprived represented in the are trial poration, who were not appeal. only opportunity to their *10 518
decree falls on the side what remains a “finality” Labor, v. Department Davis twilight zone. 317 Cf. Morgantown Royal S. 249. See also in v. U. dissent Co., Ins. 337 U. S. 263-264.
Even if old applied appeal- “either-or” rule is as to ability of the 1947 and 1948 decrees seems to here, it me weightier support that reasons final. holding the latter The judge who tried the case and rendered both decrees attributed finality to the decree of 1948 not to that He 1947. termed the 1947 order a 1948 “Decree,” the order a provided “Final Decree.” He in specifically 1947 decree “That the taxation of costs this case entry judgment therefor, be deferred until entry judgment respect to the matters hereinabove reserved for the determination of Court.” At future order, his both Petroleum and Dickinson received notice of subsequent hearings. Four months before the final judge opinion 1948 decree the trial in a memorandum “interlocutory.” referred to the 1947 decree as Answer ing respondent ap contentions that here should have pealed from the “In decree, my opinion 1947 he stated: it was not a final decree and was not appealable, at least in so far as it $176,000.” involved the claim for And judge 1948 decree the trial for the first time de clared that the hereby 1947 decree “is made final.” creditors prosecuting appeal respondent should deprived of an opportunity appeal from the 1948 decree just corporation because attorneys for the appeal failed to from a former decree trial 3 Paragraph 3 of the 1948 decree reads: day “That the issues reserved in the decree herein dated the 10th April, 1947, having been determined its decision opinion Findings and its of Fact and Conclusions of Law filed day July, 1948, hereby herein dated the 24th the said made final.” interlocutory himself seems to have considered
judge nonappealable. holding that Petroleum’s strange produce well may must be dismissed by pe urged here consequence. The reason dismissal final; under that 1947 decree was titioner Dickinson is left for the trial court contention, nothing that decree his except various “Rinke sub to do the shares of determine class sum” found due particular scribers” “the *11 costs and enter Lloyd Dickinson, from and and to assess 1947 decree seems hypothesis On the judgment. on liability and as just as final on Dickinson’s claims charges litigation originated 1947 Petroleum’s. The Lloyd. Petroleum against of fraud made Dickinson inter as then persons designated and “Rinke subscribers” Lloyd. Dickinson and vened, against fraud both charging charges against findings 1947 that the The decree rested The court con Lloyd proven. had been Dickinson and to extent subscribers, Rinke some cluded the fraud. Accord damaged by their Petroleum, had been on one partial awarded relief to Petroleum ingly the court all its claims. claims, dismissing other of its amount for the Rinke subscribers particular fixed also Lloyd from the estate. recover Dickinson group Petroleum, apparently final as to decree, here held That finality as to Dickinson: degree an identical for which precise the sum Dickinson fixing addition as a group, subscribers com were liable Rinke Lloyd Yet affirmative claims.5 dismissed Dickinson’s pletely 4 corporation of the that the interests The creditors have contended corporation at trial because adequately represented were corporation Rinke regarded immaterial whether the attorney it as recovery. obtained subscribers 5 to Dickinson and between possible distinctions opinion, seem Petroleum, 6 of by the court in footnote listed toas decree,6 the 1948 appealed himself has Dickinson urging only party here ironically enough he is the appeal from the same decree. dismissal of Petroleum’s pending. appeal is still know, So far as we Dickinson’s judg- by this Court’s With Petroleum out of the case his not be left free to ment, certainly he should Per- Appeals. in the Court of appeal own considered result findings would mitting challenge him to presence without appellate of that decree review 1947 adver- Petroleum, who one of Dickinson’s challenge If 1947 decree Dickinson can saries. should also judgment, Petroleum appeal from challenge can challenge it. And neither be allowed now be- it, questions of fraud and are liability the basic I join cannot yond appellate the reach of review. “finality” a rule which attaches such applying parties failure of these consequences to the understandable from the decree. *12 Petroleum entered unsubstantial. That the cases as an intervenor immaterial; having litigated being its claims and bound judgment, just party it is as much a as Dickinson. The 1948 de against easily against cree could have awarded costs Petroleum as Dickinson, expressly reserved the since the 1947 decree liability, parties. ad costs as to all And the extent of Dickinson’s judicated decree, way the 1947 no altered the 1948 allocating recovery among the Rinke subscribers. opinion Lloyd’s Administrator is listed the Court of “appellee-appellant.”