*1
387
my
arrest,
here,
declaring
un-
was not
an
search
that
the search
correctly,
opinion,
reasonable,
we think
Cf.
was
unreasonable.
concluding:
States, Cir.,
5
234
so
Flores v. United
his reasons for
stated
604;
States,
F.2d
Haerr
United
v.
reasonableness
“As
that therein, to search ended; they had no contraband; there search probable cause believe
nowas customs, offense was
being contentions These committed. situa- realities
overlook DYAL, Jr., tion. James E. Dyal Charles Smith Dyal, and Milton G. as Substitute Trus immigration were officers “The tees; Dyal, and James al., E. Appel et inspectors. acting as customs lants, officers to customs v. entry points are much at search UNION BAG-CAMP PAPER CORPORA category separate and in a broader TION, Appellee. King generally. v. searches from No. 17294. Cir., States, 258 F.2d 5 United In addi- 754, cited. cases there Appeals United States Court of had reason- tion, officers I think the Fifth Circuit. a cus- grounds to believe that able 12, Feb. being committed offense toms checking was, though point even necessity, somewhat were Defendants border. evasive; they were nervous the au- the trunk of to have luctant opened While the all. at tomobile Justify cannot search result removed it to attempted said, and Ramirez Garido defendant driving officers, the trunk. I doubt who was officers could to block bags point containing see the canvas car, officers On latter mari- etc. driving moving huana without Ramirez suitcase and ar- testified clothing they was Za- ticles intended mistaken —it to cover were car but up. testimony accept I
mora.
however,
officers,
defendants
2. Cannon
States,
Cir.,
officers
told the
there
v. United
5
nervous and
158 F.2d
were
952; Kelly
nothing
States,
Cir.,
when
v. United
automobile
5
197
fact,
162;
Rabinowitz,
v.
As a matter
U. S.
was.
there
U.S.
know
brought
56,
430,
653;
70 S.Ct.
had
contraband
L.Ed.
Brine
Ramirez
Bridge
gar
160,
S.,
v.
International
U.
U.S.
169 S.
across
1879;
Draper
L.Ed.
under
the hood of
Ct.
concealed
Brownsville
v.
caught
States,
Later
United
S.Ct. 329.
automobile.
*2
Corish, Savannah, Ga.,
Julian F.
Cor-
ish,
Shea, Savannah,
&
Ga.,
Alexander
counsel,
appellant.
George Williams,
Ga.,
Savannah,
W.
Lawrence,
Bouhan,
Williams, Levy &
McAlpin, Savannah, Ga.,
appellee.
HUTCHESON,
Judge,
Before
Chief
BROWN,
and CAMERON and
Circuit
Judges.
Judge.
CAMERON, Circuit
brought by
action
.This
against
Paper Corporation1
Bag-Camp
Dyal
and Trustees for
members
family2
declaratory
de
Dyals,
Union, lessee,
ap
lessors,
2. Herein referred to as
called
Hereinafter
appellants.
pellee.
long-term
years;
termining
meaning
and limited its
there-
of two
given by
after to the
removal of such timber
timber
Union,
leases
*3
growth,
represent
rights
parties
would
the normal
of
and
the
the
general
equitable
the
formula
fixed
thereunder and for
amounting
19,642.-
quoted
Dyals
hereinafter
the
to
to
relief. The
complaint,
filed an answer
year during
including
72 cords each
five
the
counter
therein a
years following
asking
the seven when normal
claim
below deter
the court
to
rights
way
prohibited.4
Union was
mine the
of
in a
the
given
option
opposite
purchase
also
prayer,
the
the
to Union’s
and also
asking
per
lands for
for
Union’s
under terms
$15.00
a declaration as
acre
right
damaged areas,
forth
set
to “clear-cut”
and
the lease.
money judgment
for a
for
of
the value
required
pay
The lease
all
Union to
certain timber
removed Union
during
taxes
life,
pay
assessed
its
damaged by
claim that
fire
it had been
annually
Management
into a Forest
granted
and beetles. The
below
per acre,
Fund five cents
which Union
summary judgment
Union’s motion for
expend maintaining
lanes,
was to
(not accompanied by
any
affidavits or
service,
fire warden
and sound
thing beyond
basing
pleadings),
the
its
practices;
pay
also to
“as rental for the
pleadings, including
action
the
premises,
described
and
land
an-
Dyals’ objections
motion and the
there
nually, in
expendi-
addition
above
to;
and the
appealed from
tures,
equal
percent
an amount
to five
summary judgment
by the
entered
agreed upon
interest on a value
court below.
*
**
purpose of this contract
per acre;
say,
$15.00
that is to
the rental
The lease exhibited with
com-
Union’s
seventy-
for the term of this lease shall be
plaint
substantially
40,000
covered
per
five
per year, payable
cents
acre
Georgia Counties,
acres of land in two
monthly installments of $650.00.”
gave
complete
control over
period
acquired,
land for the
of the lease for the
what Union
essence of
right
therefore,
removal of timber
and
exercise
to remove
rights
lease;
other
“computed
set forth in the
de-
and estimated
lands the
right
timber,
growth
nied Union
period
ex-
to cut
tract” for a
entire
cept
purposes,
years
ninety-nine
ninety-two
(i. e.,
for certain listed
for
3. There were two leases dated
i.
ties
ises,
leased and demised
treated
of said lands and
hereditaments
of,
ging, wood,
habendum
ther
1941 and
Lessee,
One Dollar
complete
the lease:
ments
to the four documents.
“Together
“That
e.,
including
following
agree
to-wit:
general
consideration
hereinafter
as one
the Lessor
and Dec.
amendatory
clauses
($1.00)
turpentine
With All
terms of
* *
described
Bag
exclusive use and control
* * *
will be used in
lease,
set
28, 1953,
&
appurtenances
* * *
*.
* * *
Paper Corporation,
forth,
contracts
And
and
writings may
and naval
rights,
lands and
consideration
all
other
granting
Singular
but
has
set forth in
timber,
and
members,
referring
unto the
Dec.
singular,
granted,
of Dec.
jn
stores,
agree-
prem-
there-
par-
fur.
log-
and
be
use and remove
with the
ty-nine (99)
may
in the conduct
on;
all
see,
during
easements
grazing,
essing,
fuel,
under,
scribed
ercising
deposits
and other
oil,
[*]
“To
[*]
trees,
mining,
cutting,
its
cutting,
wood, undergrowth,
* * *
*»
Have
or manufacture
useful,
land
* *
successors
farming
useful,
thereof,
timber,
products
in and over
full term
mineral,
and
using
And To Hold the
handling,
*.
way,
of Lessee’s business there-
convenient or
and also the
convenient or
and
premises
and other
use,
from the date
of said
as herein
or removal of which
ways,
rights granted
water,
hunting
timber
work and
removing,
assigns,
brush or
land,
privileges
unto the Les-
water
timber,
products
right
necessary
lands which
rights,
and
necessary
provided.
said de-
remove
hereof,
power,
in ex-
earth,
trees,
here-
proc-
nine-
cut,
and
and
year
year period when
practices which
term less the seven
un-
growth
timber
would tend
remove
Union was
enhance
right),
crop.
main
which the
timber
der this basic
agreed
had
19,647.72
cords
amount to
years,
would
the first
well
years,
succeeding years,
for five
each
to cut
reasonably
made at
required
new
Union to have
cruises
building
purposes,
five
intervals to ascertain
construction
establishment
estimated
of roads and
19,647.72 way,
greater
obtaining
than
and for
would be
or less
wood for
fuel
*4
right purchased
operations.
naval stores
cut
This
cords.5
basic
timber
performance
obligations
as
in
by
the
referred
of
owned
lessee will be
these
cutting.6
rights
and the
removal or
exercise of
clear-
“normal”
these
ly in addition to the
cut above
normal
right, Union
In addition to
basic
this
described. From
quoted portions of
the
given
certain additional
the contract
a
and from its terms as
timber, operate
move
stores busi-
naval
whole,
is
it
that Union was
clear
obliga-
ness, etc.,
it assumed certain
is,
selection,
have the
of
that
generally
tions which will
referred to
be
determine which
trees would be
by
Para-
“extras.”
the use of the term
performance
in
normal,
the
well as
of
as
covering opera-
4(a)
graph
of the lease
cutting.
extra
This,
as all of the
as well
years,
during
whose
the first
tions
seven
other
was to
duties of
margin,7
copied
fur-
in
are
the
terms
performed
keeping
with sound
good example
extras.
these
nishes
of
a
forestry practices.
concerning
provisions
extras
The same
during
the entire
continued
effect
by
The case
court below
was heard
term of
lease.
complaint
and the
on
its
with
exhibits
together
ap-
exhibits,
its
with
answer and
like
this
is clear from
pellants’
Sharp issues
counterclaim.
language in
as-
that Union
the lease
meaning
presented
ninety- were
as
of the
duty,
over
entire
sumed
lanes,
written instruments
years,
exhibited
providing
ob-
nine
of
fire
pleadings
serving
as
protective
Union had
whether
measures such
damaged
cutting,
of
removing
trees,
whether
scientific
cumulative
of
5. The terms
the end of the
mated
this
lease
the said
ties
normal
suing
at
* *
shall
during
at the
per
taken
¤
excess
year
standard,
“After
“For
[*]
cut,
shown
five
in excess of the
#
years’ period.
after
option
growth of the
rate
place
of the
*, and,
of five
cutting
haul or
property during
the first
per
years’
take
the lessee
period
of one-half cord
of
purpose
rate of
cause
acre
growth
in that
agreed
from
first
remove
period
expiration
cruise
over the entire
seven
lease
growth per
five
then
seven
At
agrees
computed
shall be
cruise
entire tract
between the
case,
so made to have
the lessee
expressed:
the end of the
establishing
years
governing
preceding
years’
land
next
year
of the
timber
that
life of this
pulpwood
next en-
and esti-
wood
acre
ensuing,
life
period,
it will
made
since
tract
from
par-
this
five
per
a
6.
from
of saw
hance
life of this
could
land
at
it will not
growth
years,
the manner
rate of
tion
reason
crop)
such as
poses
[Emphasis
Under
“4(a).
pulpwood.
intervals
removal
laning,
with
remove
* *
on said
and fuel
whether
logs
may
growth
During
and like
cut,
building
turpentine
reasonably required
added.]
growth
protective purposes
lease the Lessee
property,
last
portion
be determined
of
saw
haul,
lands, roads,
wood,
herein fixed. Thereafter
greater
damaged trees,
five
above
the first
purposes
[Emphasis
equivalent
logs figuring
and construction
or remove
years
for use in connec-
operations
except
stated
the lease Union
tending
less
seven
main
the rate
**
added.]
agrees
of one cord
for or
* *
*
than the
(sueh as
scientific
timber
years’
to en-
*
*
way,
pur-
feet
of
*
ing
damaged
from
to collect
were entitled
be deducted
trees should
damaged
Union was
the value of the
trees removed
normal
to which
removal
obligated
asserting
entitled,
areas
damaged
damaged
what
had
which the
taken
pay
trees were
trees and
derogation
accept-
had
been
generally Union
“clear cut” in
price, and whether
forestry practices,
ed
had
standard
observed
respects
failed
such
in other
to observe
the removal of the
general
practices.
terms.
performance
lease
agree basically
We
the hold
judgment
summary
rendered
ing of the court
entirely
below the fundamental
on
below,
the court
is,
question
cutting;
of cumulative
exhibits,8
function
could,
that Union
ing any
to cut dur
if
failed
ally
plead
same
calendar
the estimated
ings.
F.R.Civ.P.,
12(c)
Rules
and 56
acre,
per
make
of one-half
Co.,
cord
U.S.C.A.;
&
J.
Dunn v.
P. Stevens
by cutting
the deficit
subse
more in
Cir., 1951,
6 Moore’s
quent years, provided
Practice,
Edition, page
Federal
Second
*5
performed according
forestry
to sound
quotation
It
2064. will be seen from this
practices
time
and
reasonable
within a
judgment
the
from
the trial
Dyals
paying
thereunder.
the
a
that,
law,
held
as a matter of
cumulative
obviously
rental
upon
cutting
the ascer
was allowed under the
growth
tained
any
of the
writ
damaged
timber and the
by Union and
trees cut
ings
salvaged
requirement,
contain
express
no
or
purposes
should
commercial
implied,
growth
that the
of each calendar
be deducted from the
removal
normal
should
be
Dyals
removed
not
and that
enti
the
were
or otherwise be
payment
forfeited.
tled to
aged
the
value of
dam
holding
removed,
trees so
its
under
granting
complete
The
Union of
they
were
normal
included in the
use
lands
and exclusive
and control of the
cutting to which Union
un
was entitled
log-
along
timber,
years,
with all
for 99
der its
cutting
cumulative
privileges.
rights;
ging,
ab-
and other
the
wood
Dyals
denying
provision
appeal,
any
that Union
in the
contract
sence
cutting
time;
rights
any
requiring
particular
and
removal at
had cumulative
claim-
portions
subsequent
time
life
the
8. Pertinent
fol-
low:
leases.
amended,
Leases,
the exclusion from the restric-
“That
the said
do
“That
as
‘reasonably
Plaintiff,
Bag-Camp
and
limit
of trees
timber
not
Union
tions
quired
building
Paper
any
Corporation,
for or
reason of
and
certain time
purposes
lands,
periods
on said
within the lease
which
construction
within
protec-
laning,
computed
roads,
ways,
fire
remove
estimated
and
purposes
(such
growth
as the removal of
the trees and
tive
timber
thinning
tracts,
damaged trees,
permit
like
scientific
and
and
the Plaintiff
to accu-
tending
rights
purposes
growth
cutting
to enhance the
lands
mulate the
on the
de-
crop)’
ap-
main timber
does not
herein so that
in
event
of the
scribed
damaged by
growth,
stipulated
ply
computed
fires
trees
timber
annual
as
actually
agreed upon,
when
or
such are
sal-
is not removed from
insects
vaged
purposes
during any
year,
in
for commercial
or
calendar
tract
tracts
logs
may
pulpwood
deficiency
any
in
form
saw
and that
be
made
such
subsequent year
any
commercially
long
years,
utilized
or
as
trees
so
such
chargeable
against
properly
Lessee,
of the
timber
removals
time
total
during
life of
leases do
exceed
cumulative
growth
becomes effective
after
The exclusion
accumulated
Plaintiff.
the total
only
after
such removals
of the
seven
cutting rights
leases,
have
of Plaintiff
the event Plaintiff
should
i. e. in
cumulative
The exclusion of ‘fuel
from said
cut
tract
been exhausted.
category
agreed
tracts,
as to
different
an-
wood’
apply
growth
in no
restrictions
case
since
end of the first
nual
which
separate-
years period,
be
removals
are to
accumulate
such
paid
deficiency
ly
for.”
same at
remove
accounted
per-
imposition
Union
duties
lease with
one of
removing
taining
explicit
which
to scientific
Union reserved
terms
damaged
cumulatively.
generally protecting
cut
No facts
trees and
just
pleaded
owner
are
support
would
land and
an
and no law
timber
cited
do, together
Union, by
assumption
would
terms
the other
argue
inserting
leases,
contract,
of the
proviso
of the
all
in favor
such a
in other
right of
could
right
remove the timber
held to an admission that
given
cutting was not
accordance with its
wishes.
of cumulative
reasonable
.by
The amount
of the
lease here
annual
involved.
by agreement
fixed
at a
sharply
point
Another
contested
specific number of cords. But this was
between the
removal
relates to
plainly a mere matter of convenienceand by
large quantities
Union of
only
growth,
covered
con-
the timber’s
claim
were dam
that the trees
taining no indication or intimation that
aged by insects
that was
accomplished
the removal
to be
ac-
compelledto remove
in the exercise
them
cording
years.
to calendar
the other
On
protect
of sound
hand,
contract,
we think that the
read as
remaining.
agree
live trees
whole,
clearly
demonstrates
duty
imposed upon
parties intended that Union should be
damaged
trees,.but
to remove such
permitted to cut the
or cords
number
sharply
question
differ
specified multiplied by the number of
charged
the
against
should
years, providing,
course,
standard
Union’s normal removal
forestry practices were observed.
paid
or should be counted as extras and
*6
separately.
for
argument against
Appellants
their
base
chiefly
cutting
damaged
cumulative
the fact
on
Since the removal of
trees
by
payments
made
required
that
lease
were
during
of Union
the seven
coupled
basis,
years
with
annual
Union on an
permitted
when it
to
not
take
right
Dyals
past
to
cut,
of the
accelerate
as
normal
well as
the re-
only.
payments
maining
basis
due
on an annual
lease; and
of the
since the
authority
position
is
No
cited for this
volume of such
removals could
think that
it
required
and we do not
is sound.
foretold and removal
Payments by Dyal,
manifestly
gardless
based
volume,
on
it seems clear that
timber,
parties
the annual
of the
were
intended that such removals
monthly
per
on
charged against
made
at so much
ordinarily
basis
should not
year.
payments
cutting rights.
The
to accelerate
Union’s normal
easily
Paragraph
upon
part
that,
contrary
default9 is a
conceivable
if the
lease,
spelled
parties,
of the
various were
out the
held to be the intent of the
grounds upon which,
damaged
and the methods
trees
the entire life
whereby,
Dyals
might
could terminate
of the lease
exceed
normal
Union’s
land,—
possession
cutting
lease and
rights,
take
of the
limiting
its removals
possessed
damaged
hold,
no
of termination.
entirely to
We
timber.
provi-
Considered in connection
therefore,
that the
of selection of
plain
belonged
sions of
it
the whole
trees to be cut
Union—
the
subject
to
meaning
appellants
always
requirements
had no such
seek
proper
as
to
management
attribute
to
to it.
forest
had the
—and
damaged
include
removed
trees
choice
plain
think
intent
Nor do we
classify
normal cut
in its
or
them as
nullified
us can be
before
lease
of the
extras.
Dyals’ answer,
facts,
up in the
set
trial court was correct also
with
into other leases
Union entered
including
holding
questions
lands,
that the
cumula-
people
other
year,
payments
“Upon
remainder of
for a
the then lease
in rental
default
stated,
January
sixty days,
say,
is to
thereafter
herein
as
proceed
ensuing.”
due and
next
declare them
lessor
payments
all rental
at once
collect
damaged
cutting
bound,
we,
below was
to look
tive
and whether
as are
against
chargeable
writings,
Union’s
were
terms
which control
of the
ques-
if
presented
and where
harmonize
normal
do not
with
deciding
construing
only,
pleadings
tions of
them
them.14 This
law
summary judgment.
Georgia
under
in accord
the motion
law.15
with
reading
pleadings
A
shows
careful
questions
But there are other
dis
party
that neither
matter
referred to
present
pleadings which
closed
genuine
do
outside
lease
which the action
material facts. Union’s
issues of
brought,10
parties
and both
claim,
complaint
forth the
in
set
declaratory
prayers
judgments
their
exclusively
stance, that the maintenance of the lands
writings
upon the
exhibited
productive
require,
as
lands would
pleadings.11
party
with the
points
Neither
forestry prac
in the observance of sound
issue
of fact
claims
tices,
ensuing
the removal in the
four
present
an issue to be
two
these
100,000
period, of a minimum of
questions,
either in the
or in
cords of beetle
infested timber.
the briefs.
Dyals deny
controversy
A
foto.
respect
is made with
to said
No claim
exists between the
therefore,
questions,
below
that the court
amount of timber Union had removed as
to customs of the
have resorted
should
extras, including removals for scientific
trade,
parties,12 or
construction
damaged
trees,
lanes,
attending
relationship
like facts
the other
referred
items
to herein. The
furnishing possible
aid
following
claim that Union was
writings.
Nor
construction
practice
clear-cutting
areas where
writings
argue
party
either
does
asserting
present,
trees were
agreement
expressing
between
this,
as well as other
clear,
definite, explicit,
were not
keeping
were
sound
provisions
harmonious in all
management.
throughout.13
ambiguity
free from
*7
One instance of this was the removal
circumstances,
by
31,078
Under
these
Union
cords of wood as
upon
record,
present
the court
and diseased timber after the
Except
10.
Producing Co., Cir.,
the lease between
1943,
one of the
ler v. Union
5
Dyals and Union in 1946 and the other
134 F .2d 436.
above,
leases discussed
which
Fidelity-Phenix
13. Cf.
Fire Ins. Co. v.
explicitly
reserved the
to cut cumu-
Inc.,
Service,
1958,
Farm Air
Cir.,
5
255
latively.
658; Major Appliance Co.,
F.2d
Inc. v.
Appellants’
instance,
counterclaim,
11.
Hupp Corp., Cir., 1958,
503;
5
254 F.2d
prayer:
this
contains
Corp.
Cockburn,
Petroleum Financial
v.
declaratory
“That
a
defendants have
Cir., 1957,
312;
5
241 F.2d
and Baker
judgment construing the terms of the
Nason, Cir., 1956,
v.
5
basis mary judgment, render admit- parties. between the challenged questions the presented meth- whole removal, case because other but ted have issues should by of fact. practices ods and claiming utilized pro- it as dealt with the situation before had been entire amount by acres, 56(d), 7,000 vided clear-cutting Rule F.R.C.P.16 by where- taken upon order ascertaining court trial forestry required will a new enter proper “damaged “what material facts exist restrict its removals to controversy” through- without will substantial there diseased here upon be based herein purpose scien- conclusions out tract ** * reached, thinning promoting upon pleadings as well as [and] tific interrogat- by crop. then before the court of the main timber ing counsel, provided all as Rule. issue cannot in the This be resolved from guide A clear should, along which those should but hearing follow in questions here embraced in the case King mentioned, by furnished in our v. decision in settled the court Co., 1955, 193, 196, by California evidence adduced quoting prior principles under the case of United herein enunciated. Sugar Corp. States v. Atlantic Coast contract, neces- feature of Another Co,, Cir., 1952, Line R. F.2d 1015: sarily solution involved mentioned, is questions inclusion last “Moreover, nothing there final stipulations both in the determination made concerning disputes agree to submit all district court. When it hears the manage- thinning and scientific merits, case on the generally, to property arbi- ment of the trators, impact of different idea about the agreeing be bound in advance to testimony. we said in What findings. litigant Neither men- Sugar Corp. Atlan- United States v. plead- in the tions the arbitration feature ings. Co., applies supra, Line tic Coast R. provisions The effect of these points ‘Appellant here: out parties in- whether the contract and appealed from them in order constitutes tend to waive or abandon order controversy to the question to submit whole of the basic determination legally *8 courts and whether can do But the here involved. views of the hearing by so should be decided on implicit judge in the order district trial court. finality. yet assumed Until judgment, therefore, liberty hold, is he at court be- final We ”17 disposed of some of the them.’ properly alter low Adjudicated develops Fully on Mo- 17. Professor Moore this "Case Not thesis 16. fully judg- Practice, pages motion -under this rule in 6 Moore’s Federal If on tion. quotes length the whole He not rendered case is 2309-2311. ment opinion the relief asked and trial Third Circuit in Coff- for aE hearing Inc., necessary, Laboratories, 1948, 1949, the court at the v. Federal man is the and 98, by examining 94, motion, denied certiorari 913, 603, and before it inter- U.S. S.Ct. 93 L.Ed. the evidence ¿tated: counsel, practicable (d) rogating shall if as- “Subsection wherein simply provides 56] Rule for a what material facts exist without meth- [of certain controversy whereby judge trial what materi- od aid of substantial actuaEy good point in faith are can controverted facts counsel al moreover, thereupon is, similar It shaE make It procedure issues. controverted. appear provided specifying pretrial facts that Rule order an without * * * controversy, matters determined in . 16 and the substantial directing proceedings framed such further so are foreclosed in issues ” * * * just! judge cannot alter the sense his action in the Moore, And see also 3 conclusions.” seq. pages et permit the trial court pleadings continues amendment to Moreover, final judgment. final until judgment up- required18 to be entered trial. received at the evidence judgment below is remanded for
versed and the cause proceedings consistent
opinion. and remanded.
Reversed Judge (dissent-
HUTCHESON, Chief concurring).
ing part part for sum- case the clear that no
Of view judgment
mary presented, dissent I judg- opinion part of from that part approves affirms ment below, judgment granted summary I concur in much thereof so
part remands reverses for trial.
the cause ELLISON, Appellant,
Ralph Bryan
v. America, UNITED STATES Appellee. Colo., Downing, Denver, B. David No. 5996. appellant. Appeals Court of United States George Camp, Atty., Okla- Asst. U. S. Circuit Tenth City, (Paul Cress, homa Okl. W. U. S. Jan. Okl., Atty., City, him Oklahoma was with brief), appellee. BRATTON, Judge, Before Chief LEWIS, Judges.
PICKETT Circuit CURIAM. PER Bryan Ralph was indicted Ellison Court District United States of Oklahoma for District the Western Narcotic United States violation May 15, 1957 he On entered Laws. eight guilty plea counts May 24, On 1957 Elli- indictment. 18. Rule 54 E.R.C.P.