Opinion
No. 10976.
October 25, 1945.
Appeal from the District Court of the United States for the District of Nevada; Frank H. Norcross, Judge.
Action by E.H. Uhl against George Dalton for damages resulting from an automobile-truck collision, wherein defendant filed a counterclaim. From a decision of the District Court, 56 F. Supp. 656, that neither party was entitled to a judgment, plaintiff appeals.
Appeal dismissed.
Royal A. Stewart, George L. Vargas, and Morley Griswold, all of Reno, Nev., for appellant.
John R. Ross, of Carson City, Nev., for appellee.
Before GARRECHT, MATHEWS, and BONE, Circuit Judges.
In the District Court of the United States for the District of Nevada, appellant, E.H. Uhl, a citizen of California, brought an action against appellee, George Dalton, a citizen of Nevada, for damages in the sum of $3,728.92. Appellee answered, denying liability. The answer contained a counterclaim, to which appellant filed a reply. Jury trial having been waived, the case was tried by the court without a jury on August 11, 1944. The court filed an opinion on August 31, 1944, but did not, as required by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, "find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment;" nor was any judgment entered.
Appellee called his counterclaim a cross-complaint.
The opinion was not a judgment, nor did it direct the entry of a judgment. Instead, it declared that neither party was entitled to a judgment and, immediately following that declaration, ended with these words: "It is so ordered." Thus, instead of directing the entry of a judgment, the court, in effect, directed that no judgment be entered.
Upon the filing of the opinion, the clerk of the court made the following notation in the civil docket: "Aug. 31, 1944. Judgment denied as to both plaintiff and deft." That was not a notation of a judgment, within the meaning of Rule 58 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following § 723c, and hence did not constitute the entry of a judgment.
Rule 58 provides: "The notation of a judgment in the civil docket * * * constitutes the entry of the judgment; and the judgment is not effective before such entry."
On November 28, 1944, appellant filed a notice of appeal "from the final judgment * * * entered in the above entitled action." Subsequently there was transmitted to this court what purported to be a transcript of the record on appeal from the judgment thus supposedly entered. Since there was, in fact, no such judgment, the appeal was premature.
Appeal dismissed.