Murray Ferguson, as Trustee in Reorganization of Equitable Plan Company v. Bartels Brewing Company (Pa.)

284 F.2d 855

• Court: Court of Appeals for the Second Circuit
• Decided: January 10, 1961
• Docket: 26355_1
• Status: Published

Opinions

CLARK, Circuit Judge.

Defendant The Bartels Brewing Co. (Pa.) appeals from a judgment for $118,-101.55 in favor of plaintiff granted by Judge Palmieri in the United States District Court for the Southern District of New York under F.R. 37(d), based on the failure of defendant’s president, Jay F. Fisher, to appear for examination before trial. The case was argued to us on the merits and, notwithstanding Fisher’s willful default, presented obvious, difficulties. A very large judgment had been entered against the appellant corporation on the basis of affidavits claiming its participation in a tortious conspiracy,, but failing to show that any of the acts, of appellant’s officers claimed to prove such participation were authorized. In addition, unliquidated damages were fixed without the hearing contemplated by F.R. 55(b) (2). But our subsequent research developed an issue which we must consider, even though not raised by counsel, namely, the appealability of the judgment; and since we find it to be interlocutory and not final, the appeal must be dismissed without adjudication on the merits.

The claim on which the present judgment is based was directed also against two named codefendants alleged to have acted in concert with appellant. Where a single claim is thus alleged against multiple parties, a final, appeal-able judgment can be entered only against all. Goldlawr, Inc. v. Heiman, 2 Cir., 273 F.2d 729; Polara v. Trans World Airlines, Inc., 2 Cir., 284 F.2d 34, citing cases. In the present case one of the individuals named as codefendant —Lowell M. Birrell — has apparently not been served. Thus he is not a party to the case, and his designation as a codefendant would not bar entry of a final judgment against the other defendants who have been actually made parties. Siegmund v. General Commodities Corp., 9 Cir., 175 F.2d 952, 953; Hooven, Owens & Rentschler Co. v. John Featherstone’s Sons, 8 Cir., 111 F. 81, 84-85; Bradshaw v. Miners’ Bank of Joplin, 7 Cir., 81 F. 902; cf. Foster-Milburn Co. v. Knight, 2 Cir., 181 F.2d 949; L. G. Defelice & Son, Inc. v. Globe Indemnity Co., D.C.S.D.N.Y., 23 F.R.D. 275, 278. Compare Lyford v. Carter, 2 Cir., 274 F.2d 815, where the point was adverted to, but was not necessary to decision.¹ But the other named codefendant, H. H. Begley, has been served and made a party. Thus the claim against appellant and defendant Begley must be disposed of with respect to both parties before a final, appealable judgment can be entered.

Appeal dismissed.

1 . There were still other appearing defendants who were parties only to other and separate claims pleaded in the complaint. As to these Judge Palmieri obviously intended to enter an order of separation and finality under F.R. 54(b), al-thcragb bis judgment is not overly clear in this regard. But in any event such an order would not affect the single claim here in issue. Goldlawr, Inc. v. Heiman, 2 Cir., 273 F.2d 729.