Mrs. Eloise Carter v. Mrs. Lois Croswell
323 F.2d 696
5th Cir.
1963
Check Treatment

*1 Before CAMERON and Judges. HAYS,* Circuit Judge. CAMERON, Circuit summary This is an from a Judge, Rives, Circuit dissented. against judgment entered the counter- growing an action out of an automobile accident. brought Plaintiff-appellee a tort action alleging appellant appel- negligence proximately

lant’s caused Appellant accident. terclaimed, answered and coun- alleging appellee was solely fault. The court below entered on the elaim appellee, liability only; the issue of appellee, counter-defendant, her role of counterclaim. The latter F.R.Civ.P., entered under Rule 28 U.S.C.A.1 This is from the * designa- Circuit, sitting by Upon Multiple “Judgment Claims. the Second When Of present for relief is tion. action, ed in whether as a

697 for the only, ment the on still counter-defendant judgment and latter arising damages not, was, proper counterclaim question or was of below original necessarily important would decide of the out aspects original claim, which of doubt we considerable have While clearly stage of is not at this entry the sum- propriety of the litigation, may perhaps state and presented,2 mary judgment “the law of This is so even the case.” appeal that on dispose this though negligence contributory is not an view, do we ground our under recovery Mississippi,5 absolute bar to in of the jurisdiction merits of the have not because the coun claim and appeal. terclaim facts and parties.6 raise the same parties did not The sponte our test question, suco but we Appeal dismissed. appeal. The jurisdiction hear no find “that there did court below (dissenting). Judge Circuit delay this just from reason does seems to me that upon counter judgment as rendered jurisdiction have of the entered * * * finding ”, can but Fed.R.Civ.P., under as con- un jurisdiction this Court not confer Sears, in strued v. Roebuck & Co. relief “more one claim less than 1956, 895, 427, 351 100 U.S. 76 S.Ct. presented action.”3 [the] [was] 1297, L.Ed. and Process Co. Cold Metal United, etc., Co., 1956, 445, v. in this case It is clear n claim and counterclaim necessarily 453, 904, 76 100 are is used “claim” as that word Sears, opinion In the Court’s in the multiple statute,4 claims. are not said; Roebuck appeals piecemeal policy The cannot, necessarily such a construction. forces judg treat A this Court exercise of decision its third-party Robbins, terclaim, cross-claim, full on the merits. entry may Braniff, Stanley, supra. the court judgment direct the upon less than or more but interlocutory appeal This not an express only upon an all of the claims 1292(b). 28 U.S.C.A. just rea- is no determination that there Plywood Corp. Hud v. Cf. United States express delay direc- son Cir., Co., 1954, 2 Lumber son 462; entry judgment. In tion Machinery Corp. of Del. Seaboard n absenceof sudi determination and direc- Machinery Corp., 1959, v. Seaboard any tion, form other of deci- order or Cir., adjudi- sion, designated, which however (Recomp.1942) cates less than all the claims shall § 1454. 5. Miss.Code Anno. Crosby Mfg. of the terminate the action as Lumber & Accord e. Durham, form and the order or other v. 854; 181 Misc. 179 So. Corp. Parnell, decision to revision time Kraft Southern v. entry adjudicat- judgment Cir., before the 65 F.2d 785. ing all the claims.” nothing in 6. There is Cold Metal Process proper Engineering Foundry Co., 2. This Circuit’s views as to the v. Co. United function of fully presented have been U.S.. 351 1311, 76 S.Ct. contrary in recent cases: Rob which us to a leads Enterprises, Inc., 1960, v. Milner bins The main decision. claim and E.2d Braniff Jackson v. case did terclaim not involve the Ferry, Inc., 1960, Oil., Avenue-Gretna 523; Stanley Guy Scroggins the same transactions. Nor do we Co., 1961, Cir., Ed., Const. 5 impropriety 297 F.2d find 6 Moore’s Federal entry se<j. pp. cases cited. of the In et contra. we not, of a does would not consider that the trial course, preclude entry the later oí a had discretion the facts this case aon directed verdict after a enter the certificate and direct 54(b). under Rule Sears, dissenting ‘final’ ‘final’within that which is not Roebuck from while meaning But Dis- Metal: §of may, by trict Court the exercise “Count II in Roebuck & Co. sound its discretion the interest of *3 ante, p. 427 [351 U.S.] judicial administration, release p. 1297],. S.Ct. [76 100 L.Ed. final decisions appealable is since transactions all, more, but less than claims in and occurrences involved it do not timing multiple claims actions. The involve those embraced good is, rea- such a release with Counts III and IV. Count I involves son, primarily by vested the rule at least two transactions which are- the discretion of also the Counts matter of likely as the one most familiar be IV, III and but is any justifi- with the and with case 1292(1) interlocutory as an order delay. equally able reasons for With denying injunction. In Cold good reason, any abuse of that dis- Engi- Metal Process Co. v. United by cretion remains reviewable neering Foundry Co., post, & [351 Appeals.” Court p. p. U.S.] [76 900-901, 76 S.Ct. at 100 L.Ed. 1297. 1311], counterclaim, even compulsory, if not is based sub- spoke In the Cold Metal the Court part stantial in- transactions particular present to the situation litigation volved in the main appeal, when, treating in the context of appealable.” hence not 351 U.S. at appeals from counterclaims and cross- 443-444, 903-904, 76 S.Ct. at claims, it said: “If the District Court certifies My order on a claim which arises Brothers do not hold that the dis the same trict transaction and occurrence court abused its re discretion in leasing claims, and the They is say satisfied simply there has counterclaim. in their been no abuse of footnote 6: “In we would appealable.” is order 351 U.S. at consider that trial had dis 908-909, 76 S.Ct. at cretion 100 L.Ed. under the facts of this enter the certificate and direct 54(b).” With My that the Cold Metal Brothers think deference, that directly seems me con contrary to their conclusion case is not trary to the Supreme decisions of the as said their footnote 6:. Court in Metal, Roebuck and Cold main claim and the counterclaim supra. I think contrary, also, it case did not to the decisions of this and other courts out of appeals,1 leading to the text deference, With transactions.” writers.2 I such distinction submit that negatived by Frankfurter, Clearly, submit, Mr. Justice say I joined by Harlan, concurring Mr. Justice the district court abused its discretion. Manufacturing Company See, etc., cross-claim, Norris e. Darling Co., Cir., 1963, regardless presented, E. v. R. ‘claim for relief’ 633; similarity L Rural v. C Elec- Kincade factual Cooperative Corp., Cir., tric since the claimants could have enforced Op. 929; separately. rule, Terminal International claims their in ex- Co., press terms, contemplates result, 272 P. v. Waterman SS. Tompkins Georgia by supported holding 2d Motor Lines v. it is and lan- Broilers, Cir., 1958, guage Metal case.’’ 3 Barron Holtzoff, and cedure, p. Federal Practice and Pro- example: also, more For “Wherever than one 28. See 6 Moore’s Fed- requests relief, ed., counter- eral section 54.35. are we position than in better length of a complexity judge of the dam- amount of to determine liability precisely ages. The issue the dis- be after now as will hearing and entered has a court had trict damages on judgment for respectfully

I dissent. *4 INC., BROS., Appellant,

MORAN Oils, Trustee, Admiral YINGER,

R.W. Corporation, Inc., an Oklahoma

Appellee.

No. Court of

United States Tenth Circuit. 22, 1963.

Oct.