Mrs. Eloise Carter v. Mrs. Lois Croswell

323 F.2d 696, 7 Fed. R. Serv. 2d 999, 1963 U.S. App. LEXIS 4075

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 3, 1963
• Docket: 20259
• Status: Published

Opinions

CAMERON, Circuit Judge.

This is an appeal from a summary judgment entered against the counter-claimant in an action growing out of an automobile accident.

Plaintiff-appellee brought a tort action against appellant alleging that appellant’s negligence proximately caused the accident. Appellant answered and counterclaimed, alleging that appellee was solely at fault. The court below entered summary judgment on the original elaim for appellee, on the issue of liability only; and summary judgment for appellee, in her role of counter-defendant, on the counterclaim. The latter judgment was entered under Rule 54(b), F.R.Civ.P., 28 U.S.C.A.¹ This appeal is from the latter judgment only, and still pending below is the question of damages arising out of the original claim.

While we have considerable doubt as to the propriety of the entry of the summary judgment on the case presented,² we cannot dispose of this appeal on that ground because, under our view, we do not have jurisdiction of the merits of the appeal.

The parties did not raise the question, but we suco sponte test our jurisdiction to hear the appeal. The court below did find “that there is no just reason for delay of appeal from this judgment as rendered upon the counterclaim * * * ”, but that finding cannot confer jurisdiction on this Court unless “more than one claim for relief [was] presented in [the] action.”³

It is clear in this case that the ■claim and counterclaim are necessarily the same “claim” as that word is used in the statute,⁴ and are not multiple claims. The policy against piecemeal appeals necessarily forces such a construction. A decision by this Court that the judgment for the counter-defendant on the counterclaim was, or was not, proper would necessarily decide important aspects of the original claim, which clearly is not appealable at this stage of the litigation, and may perhaps state “the law of the case.” This is so even though contributory negligence is not an absolute bar to recovery in Mississippi,⁵ because the original claim and the counterclaim involve the same facts and the same parties.⁶

Appeal dismissed.

1 . “Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the ■absence of sudi determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

2 . This Circuit’s views as to the proper function of summary judgment have been fully presented in recent cases: Robbins v. Milner Enterprises, Inc., 1960, 5 Cir., 278 E.2d 492; Braniff v. Jackson Avenue-Gretna Ferry, Inc., 1960, 5 Oil., 280 F.2d 523; Stanley v. Guy Scroggins Const. Co., 1961, 5 Cir., 297 F.2d 374, and cases cited. The impropriety of the entry of a summary judgment does not, of course, preclude the later entry oí a judgment on a directed verdict after a full hearing on the merits. Robbins, Braniff, and Stanley, supra.

3 . This is not an interlocutory appeal under 28 U.S.C.A. § 1292(b).

4 . Cf. United States Plywood Corp. v. Hudson Lumber Co., 1954, 2 Cir., 210 F.2d 462; Seaboard Machinery Corp. of Del. v. Seaboard Machinery Corp., 1959, 2 Cir., 267 F.2d 178.

5 . Miss.Code Anno. (Recomp.1942) § 1454. Accord e. g., Crosby Lumber & Mfg. Co. v. Durham, 181 Misc. 559, 179 So. 285, 854; Southern Kraft Corp. v. Parnell, 5 Cir., 65 F.2d 785.

6 . There is nothing in Cold Metal Process Co. v. United Engineering & Foundry Co., 1956, 351 U.S.. 445, 76 S.Ct. 904, 100 L.Ed. 1311, which leads us to a contrary decision. The main claim and the counterclaim in that case did not involve the same facts, but merely arose in part out of the same transactions. Nor do we find 6 Moore’s Federal Practice, 2nd Ed., pp. 248 et se<j. contra. In any event, we would not consider that the trial judge had discretion under the facts of this case to enter the certificate and direct entry of the judgment under Rule 54(b).