HUNTEMAN v. NEW ORLEANS PUBLIC SERVICE, Inc., et al.

United States Court of Appeals for the Fifth Circuit1941-05-02No. No. 9644

119 F.2d 465

Summary · law.co

Holding. The appeal is dismissed for lack of appellate jurisdiction because the trial court's order dismissing one defendant does not constitute a final judgment when the action remains pending against other defendants alleged to be jointly liable.

Henry Hunteman's widow and children sued multiple defendants for damages arising from his fatal work injury, seeking a judgment binding all defendants jointly for their alleged concurrent negligence. The trial court dismissed the case against one defendant, New Orleans Public Service, Inc., while leaving claims against other defendants pending. The plaintiffs appealed the dismissal.

The appellate court dismissed the appeal for lack of jurisdiction. Under established precedent, an appellate court may only review a judgment that is final and disposes of the entire controversy between all parties. A dismissal of one defendant in a case involving claims of joint liability, while the action remains active against other defendants, does not constitute a final judgment. The court noted that although this procedural outcome may be unfortunate and could delay resolution, the trial court retains authority to reconsider its dismissal order and reinstate the dismissed defendant.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Finality requirement for appellate jurisdiction
Dismissal of one defendant in joint liability cases
Whether partial judgment supports appellate review
Interplay between Federal Rules of Civil Procedure and appellate jurisdiction

Procedural posture

Plaintiff-appellants appealed a trial court order dismissing one defendant from a negligence action while claims against other defendants remained pending.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

HOLMES, Circuit Judge.

Henry Hunteman was fatally injured while working as a subcontractor on a construction project in New Orleans, Louisiana. Plis surviving widow and children brought this suit for damages against New Orleans Public Service, Inc., Arthur J. Rife, and the Liberty Mutual Insurance Company, alleging that the injury resulted from their joint and concurrent negligence, and asking judgment in solido against them.

The court below granted the motion of New Orleans Public Service, Inc., to dismiss the suit, as against it, on the ground that the complaint failed to state a claim upon which relief could be granted. This appeal was taken from that judgment of dismissal, and is met in this court with a motion to dismiss on the ground that the judgment appealed from lacks the finality necessary to confer jurisdiction upon this court, since the action against the other defendants was not disposed of by the judgment but is still awaiting trial in the court below.

The question thus posed, whether this court has jurisdiction to entertain the appeal, must be answered in the negative upon the authority of Menge v. Warriner, 5 Cir., 120 F. 816, General Electric Co. v. Allis-Chalmers Co., 3 Cir., 194 F. 413, and Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443. An order, judgment, or decree dismissing one defendant and leaving, for the future disposition of the court, the same controversy as to others who are charged to be jointly liable with him, is not a final decision which will support an appeal to this court under Section 128 of the Judicial Code, as amended. 28 U.S.C.A. § 225, 43 Stat. 936. When a final decree is rendered which determines the rights of all the parties to the controversy, and which, upon affirmance, would leave nothing to be done by the court below except to execute the decree, then, and not before, may an appeal properly be taken.

These principles do not conflict with the letter or spirit of the Federal Rules of Civil Procedure. The rules are not intended to affect the jurisdiction of the district courts with whose procedure they deal; they do not affect the jurisdiction of the, appellate courts to which they are not directed. By seeking a judgment in solido against several defendants charged to be jointly and concurrently negligent, we think appellant presented but one claim for determination between the parties. When a judgment is entered which puts an end to that controversy between all of the parties litigant, appellate jurisdiction may be invoked.

By entering the order, a case involving one cause of action was divided into two sections, the one dormant and the other active. This may be unfortunate. The trial of the whole cause may already have been delayed by this attempt to appeal; and, if the case goes to trial between the remaining litigants, the resulting judgment may be set aside on appeal if the motion to dismiss was erroneously granted to New Orleans Public Service, Inc. It might have been better to overrule the motion to dismiss and permit the whole case to progress to its proper disposition, but this was for the district court to determine. It may yet set aside the order of dismissal and reinstate the action as to the New Orleans Public Service, Inc. The entire case is still in the district court and subject to its control. There being no final judgment, the appeal is dismissed.

See also: Bank of Rondout v. Smith, 156 U.S. 330, 15 S.Ct. 358, 39 L.Ed. 441; Hewitt v. McCormick Lumber Co., 2 Cir., 22 F.2d 925; Moss v. Kansas City Life Ins. Co., 8 Cir., 96 F.2d 108; Atwater v. North American Coal Corp., 2 Cir., 111 F.2d 125.

United States v. Girault, 11 How. 22, 13 L.Ed. 587; Morrison v. Burnette, 8 Cir., 154 F. 617, Id., 212 U.S. 291, 29 S.Ct. 394, 53 L.Ed. 517; Merriman v. Chicago & E. I. R. Co., 7 Cir., 64 F. 535; Morgan v. Thompson, 8 Cir., 124 F. 203; American Bank Protection Co. v. Electric Protection Co., C.C., 181 F. 350; United States v. Bighorn Sheep Co., 8 Cir., 276 F. 710. Cf. United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339.

Rule 82 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. See also the treatment given this problem in Moore’s Federal Practice, Vol. 3, pages 3155 et seq., and at pages 469 et seq., 1940 supp.