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Kelly v. Greer

October 9, 1961


Author: Goodrich

Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

These are appeals from a district court order consolidating two suits brought by the plaintiff against the defendant. In each of the cases there is an additional defendant, a bank. The presence of these additional defendants, who are merely stakeholders, is immaterial for our purposes because the party in interest in each case is Agnes J. Reeves Greer. In both suits a daughter is suing her mother claiming, in the words of her counsel, the mother's "determination to destroy her daughter in one way or another."

One suit has to do with shares of a Canadian corporation known as the Union Gas Company of Canada, Ltd. The other concerns the Greer Steel Company, a West Virginia corporation, the stock of which is closely held within the Greer family in one way or another. The plaintiff has asked that the two suits be consolidated; the defendant vigorously opposes this consolidation and now appeals from the district court's direction that consolidation be effected.

These cases present three questions. The first is based upon the fact that the trial court never entered any formal order of consolidation. The last statement made by the trial judge at the end of the pretrial conference was: "The motion to consolidate will be granted. Where we go from there, I don't know."

It is pretty clear that a formal order is ordinarily necessary to complete the action which a judge takes in announcing his decision upon a given point. This becomes important in those cases where a question raised is whether an appeal is brought prematurely or is brought on time. See Healy v. Pennsylvania R.R. Co., 3 Cir., 1950, 181 F.2d 934; Green v. Reading Co., 3 Cir., 1950, 180 F.2d 149.

It would be unfortunate in these appeals if we had to send the cases back for the entry of a formal order by the trial judge. Both parties know exactly what his ruling was and know that he was prepared to bring the cases to trial if it had not been for these appeals. So we shall not stick in the bark because of the lack of a formal order under the circumstances in this particular litigation but will go ahead and consider the further points raised. It would be a most desirable practice, however, if the trial judge would enter a formal order of consolidation. The Court of Appeals would then know exactly what the ruling of the District Court was and when it was made.

The next question is whether an order of consolidation is appealable. The statute which gives United States Courts of Appeals jurisdiction to review the action of the district courts seems pretty clearly worded. 28 U.S.C. § 1291 says that "the courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * *." Section 1292, not relevant here, lists instances in which an interlocutory appeal may be had in certain types of cases.

There has, however, been some incrustation upon this § 1291. In Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528, the Supreme Court held that the denial of a corporation's motion for security in a stockholders' derivative suit was appealable. In deciding the case the Court said:

"This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction." Id. 337 U.S. at page 546, 69 S. Ct. at page 1225.

It is to be noted that this language is pretty carefully limited. The class is to be small and the rights are those too important to be denied review and independent of the cause itself. In Cohen it is very clear that if the claim for security was denied at the beginning of the action, a successful defendant might find itself without any way of recovering its costs.

But does this "small class" extend to orders for consolidation? Two circuits have said no; such an order is not appealable. Travelers Indem. Co. v. Miller Mfg. Co., 6 Cir., 1960, 276 F.2d 955; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 671-672. The Second and Eighth Circuits indicate that perhaps sometimes it may be. MacAlister v. Guterma, 2 Cir., 1958, 263 F.2d 65; Johnson v. Manhattan Ry., 2 Cir., 1932, 61 F.2d 934; Adler v. Seaman, 8 Cir., 1920, 266 F. 828, 840.*fn1

This Circuit has been exceedingly conservative in adding to the incrustation upon the words of Section 1291. In Panichella v. Pennsylvania R. Co., 3 Cir., 1958, 252 F.2d 452, 454, we emphasized through Judge Hastie that "Section 1291 of Title 28 of the United States Code, limiting the normal jurisdiction of courts of appeal to the reviewing of final judgments, has jurisprudential significance beyond mere technicality. It is an authoritative application and implementation of a basic and persisting policy against piecemeal appeals." In Panichella, we adhered to this policy and vacated an order under Fed.R.Civ.P. 54(b), 28 U.S.C. making a summary judgment in favor of a third-party defendant against the original defendant an appealable final judgment, where the matter on appeal would become moot if, for any reason, the original plaintiff did not recover against the original defendant.

In this instance, however, we are not called upon to say whether the answer to the appealability of a consolidation order is "never" or "hardly ever"*fn2 because here the ...

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