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179 F.2d 302

Docket No. 10013.

Etten v. Kauffman

Third Circuit Court of Appeals

Argued Jan. 5, 1950.

Filed Jan. 10, 1950.

Third Circuit Court of Appeals · decided 1950-01-10

Cited by 51 later decisions — most recently December 1967 · most notably 13 Ill. 2d 200 - Ariola v. Nigro (1958), Rieser v. Baltimore & Ohio Railroad (1955)

45 federal appellate · 4 state decisions

2 counsel of record

Key passage — most relied on by later courts

“(b) Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, 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 such 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.”

quoted by 3 later decisions, including Town of Clarksville v. United States, Robinson Bros. & Co. v. Tygart Steel Products Co.

“The crucial defect is that the judgment makes no mention of the counterclaim. There is no disposition thereof. The counterclaim is not dismissed. Relief is not denied thereon by the judgment. There is a paragraph in the conclusions of law which may refer to the subject matter of the counterclaim. It is there stated that this claim “was not within the issues of the case and the court makes no determination thereof.” This expression was not, however, part of the judgment. Even if the paragraph were an integral part of the judgment, the trial court has no authority to refuse to decide a validly pleaded counterclaim to which there is an answer by such a disclaimer. The judgment did not comply with the provisions of Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A. There was no judgment disposing of the counterclaim. There was no certificate or finding as required by this Rule.”

quoted by 1 later decision, including Perdue v. Knudson

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1950-01-10

View the full empirical analysis of this case →

¶1Ralph Hammar, Erie, Pa., for appellant.

¶2Charles F. Meroni, Chicago, 111. (Carlton Hill, Chicago, 111., Isaac J. Silin, Erie, Pa., on the brief), for appellee.

¶3Before BIGGS, Chief Judge, and MARIS and KALODNER, Circuit Judges.

¶4PER CURIAM.

¶5The appeal at bar was taken from a judgment of the court below declaring patent No. 2,406,951 to be void and granting certain other relief to Etten which need not be detailed here. The judgment of the court, however, did not dispose of the counterclaim filed by the defendant and of all the issues raised by the plaintiff’s assertion that the defendants wefe engaged in a conspiracy which damaged the plaintiff.

¶6Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides: “When more than one claim for relief is presented in an action, whether as a claim [or] counterclaim, … 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 such 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 claim.”

¶7In the instant case the court below did not enter a final judgment upon all the claims and did not make the determination, required by Rule 54(b). It follows that under the circumstances the judgment appealed from is not a final judgment. We therefore must dismiss the appeal. Should, however, the court below see fit on remand to vacate the judgment here appealed from, to file a certificate as required by Rule 54(b) and to render a judgment in con*303formity therewith and if the present appellants should appeal to this court from that judgment, if entered, this court would deem it unnecessary to have the parties reprint briefs or appendices. We may not and do not express any opinion as to whether or not there is any “just reason for delay” in the determination of all the claims. See Rule 54(b).

¶8Accordingly the appeal will be dismissed for want of jurisdiction.

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