Sears, Roebuck & Company v. Mackey

PETITIONER:Sears, Roebuck & Company
RESPONDENT:Mackey
LOCATION:

DOCKET NO.: 34
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

ARGUED: Feb 28, 1956
DECIDED: Jun 11, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1956 in Sears, Roebuck & Company v. Mackey

Earl Warren:

Number 34 Sears, Roebuck and Company versus Bruce A. Mackey.

Mr. Rockler.

Walter J. Rockler:

Yes, sir.

If it please the Court.

I am appearing for the petitionrs Sears, Roebuck and his Company.

It is agreeable to the Court, I propose to reserve about 10 minutes of my allotted time.

This case rises on a petition for certiorari to review the decision of the Circuit Court of Appeals for the Seventh Circuit which denied a motion to dismiss an appeal.

The motion was taken from an order of the trial court, the District Court to dismiss parts of a complaint.

That is the appeal that was taken.

The motion of the petitioner, sorted a lack of jurisdiction on the ground of a lack of the — of meeting the requirements of Section 1291 of the Judicial Code.

The Court of Appeals below, relying upon the fact that an order in the form of Rule 54 (b) of the Federal Rules of Civil Procedure, had been entered by the District Court held that it was unnecessary to consider whether or not the requirements of Section 1291 were met undependable.

We believe that the court below, errored in its interpretation of Rule 54 (b) and misjudged the relationship of the Federal Rule, the Section 1291 of Judicial Code.

The background of this matter in detail is as follows.

The respondents, an individual and a corporation wholly controlled by the individual respondent, filed a complaint in the six counts against the petitioner.

Count I set forth the allege violations of the Sherman, Clayton and Robinson-Patman Act and demanded travel damages cost and permanent equitable relief.

This was the general antitrust count.

Count I in a specific allegation stressed the size and power of the petitioner, Sears, and charged that the petitioner had committed a series of individual wrong or tort against the respondents.

The Count I also charged that he was — these were a part of a very general plan to drive the petitioner out of all businesses now and in the future.

Thus, paragraph 11 of Count I alleged, “Beginning in 1949 and continuing down to the date of the filling of this complaint, Sears has been engaged in a continuing attempt to destroy each and every business owned, controlled, or managed by Mackey.

And thereby, to punish Mackey for refusing to deal with Sears on terms dictated by Sears and to deter others from refusing to deal with Sears on terms dictated by Sears.

After several paragraphs of allegations with respect to specific wrong, paragraph 22, more or less, have the same thing.

All of the four set Acts and practices have been performed by Sears pursuant to its continuing plan to destroy each and every business in which Mackey has engaged or may attempt to engage.

In the subsequent counts by re-alleging the counts, the allegations of Count I singly or in combination, the respondents purported to multiply their clauses of actions or claims with respect to the number of laws violated, the claims themselves and of course the amount of damages.

Count II, thus, based almost entirely on cross references to specific paragraphs of Count I alleged unfair competition by the petitioner with a lamp business conducted by the respondent.

Count III, similarly based on cross references to Count I, charged interference with profitable contractual relation to the respondent.

Count IV, similarly established by cross reference to Count I, alleged unfair competition and we believe a possible patent infringement with respect to a tool business conducted by the respondents.

Count V, which originally charged Robinson-Patman the antitrust violations was abandoned by the respondent.

Count VI, which substantially reincorporated all of the fact to the allegations of the forgoing counts, charged an overall general tort of an attempt to destroy all businesses of the respondent.

Again, Count VI was based upon the notion of a plan linking together all of the specific episodes charged in paragraphs to Count I.

Upon the petitioner’s motion in the trial court as amended to dismiss parts of the complaint, the trial court did dismiss Count I, II and part of Count VI without lead to amend.

Walter J. Rockler:

The parties are thus now that issue in the trial court on Counts III, IV and the remaining part of Count VI.

The order of dismissal by the District Court took the form of an order under Rule 54 (b) as amended of the Federal Rule, that is to say the Court found that there was no just reason for delay and directed the entry of its judgment.

The petitioner, thereafter, filed a motion to dismiss the appeals, which set on the ground, that statutory finality.

A final decision in the sense of Section 1291 of the Judicial Code was lacking, not withstanding the entry of judgment from the form of Rule 54 (b).

This motion was denied by the Court of Appeals solely and exclusively upon the ground that the District Court’s order entered in accordance with Rule 54 (b) forms was conclusive as to the jurisdiction of the Court of Appeals.

It should be noted that briefs were filed by both parties, an extensive argument was held in the Circuit Court upon two issues.

The first issue was as to the effect of Rule 54 (b) order, was it necessarily final for appeals’ purposes.

This is a question of interpretation as the question of relationship of the Rule to the jurisdictional statute.

If the Court found that a Rule 54 (b) order was not final necessarily in the jurisdictional sense, a second question was presented in the Circuit.

That question was whether, in — in the light of the construction of 1291 which this Court and other Courts have given, whether the decision dismissing parts of the complaint in the court below was final under 1291.

That is a question entirely apart from Rule 54 (b).

Now, reviewing the conflicting decisions in a various Circuits, as to the effect of Rule 54 (b), the Court of Appeals below decided that an order entered in accordance with its form was controlling an appellate jurisdiction, thus, the Court found it unnecessary to decide the second question which had been argued their finality in the 1291 sense.

In its decision, the Court accepted the views of a majority of the Circuit Court of Appeals for the Third Circuit in the Bendix Aviation Company versus Glass case and the views of a panel of the Second Circuit in Pabellon case, Pabellon versus Grace Line.

These cases have been extensively cited in both briefs.

The court below recognized that this interpretation of Rule 54 (b) to use its own words “automatically and conclusively” fixed appellate jurisdiction in accordance with the direction of the District Court Judge.

Also, the Court construed the opinion of Judge Clark on this question in the Pabellon case which opinion it adopted.

To the effect of that, “A final order under Rule 54 (b) relieved the Court of Appeals from the task of making an independent analysis to determine whether or not the order was, in fact, final and appealable.”

In view of its decision, as I’ve said, the court below explicitly refused the pass upon the question whether the elements of statutory finality required by Section 1291 were present in the dismissal order of the trial court judge.

In this Court, we believe the issue is simpler.

It can be stated as one or two issues.

As two issues, the first question is whether an order on one or more claims in a multiple claims case, complying in the form with Rule 54 (b) automatically becomes appealable at the Court of Appeals level.

A second issue which we think is closely related to the first is whether Rule 54 (b) is interpreted to reach this result as the Court of Appeals below did, whether the rule is then valid in view of the congressional requirements with respect to jurisdiction set forth in 1291.

Now, we think the second question is illusory that is to say the validity of the rule because it’s our view that the proper interpretation of Rule 54 (b) is that it does not confer appellate jurisdiction.

Felix Frankfurter:

What type of the question made difference from that Court of Appeals (Inaudible)

Walter J. Rockler:

I think —

Felix Frankfurter:

That’s what I understood you to say.

Walter J. Rockler:

I think the question here is different because the Court of Appeals had it before two questions, namely, the effective Rule 54 (b), and secondarily, the question of whether or not the judgment in the trial court was final.

They bypassed the second question entirely by their construction of Rule 54 (b).

And I think it’s a question of whether or not their interpretation of Rule 54 (b) was supported (Inaudible)

Felix Frankfurter:

Well, an (Inaudible) with 54 (b), the District Court had to determine not to write a piece of paper saying it is final, doesn’t he?

Walter J. Rockler:

I think that’s right, Your Honor.

But — that the —

Felix Frankfurter:

Did the Court of Appeals assumed that?

Walter J. Rockler:

I think it did but the —

Felix Frankfurter:

I mean, that can’t — that cant be read onto this rule, whatever (Inaudible)

Walter J. Rockler:

No, sir.

But I think as — as I would try to indicate hereafter, the word “final” in the rule as an all together a different meaning in the word final in Section 1291.

Felix Frankfurter:

That’s a different question.

Walter J. Rockler:

I think the question of — of what the word final means under 1291 under the facts of this case is a different question.

Felix Frankfurter:

If the — I understand that.

Walter J. Rockler:

Well, let me — let me —

Felix Frankfurter:

Under — under 54 (b), the District Court has to say this is — had to enter a final judgment whatever the final may mean under the rule for getting all about 1291, right?

Walter J. Rockler:

Right, right.

Felix Frankfurter:

Now, then after the Court of Appeals have to find that there was a determination of finality within the rule, no matter what the rule is.

Walter J. Rockler:

Well, let me say — in my —

Felix Frankfurter:

I just want to — I — I don’t — I don’t understand, still don’t understand that your remark, the question here is different from what the Court of Appeals have decided?

Walter J. Rockler:

But the question with respect to Rule 54 (b), I think, is the same question.

I think this Court does not have before it the — the independent question of whether or not under Section 1291 apart from Rule 54 (b).

There was a final judgment in the trial court.

Felix Frankfurter:

Well, that — it wouldn’t have to reach for that if it post that final — that under the rule, it is final, it cannot mean something different.

Walter J. Rockler:

That’s right — if —

Felix Frankfurter:

But not a different (Inaudible)

Walter J. Rockler:

I think — I think that’s entirely correct, Mr. Justice.

In other words, if this — if this Court agrees with the Court of Appeals below, it does in effect said that final in the two — in the rule and the statute mean the same thing and there is no further question.

Felix Frankfurter:

Unless — unless this would be final under 1291.

Walter J. Rockler:

But if it — if — if this Court agrees with the court below, there is no question under 1291.

If this Court did —

Felix Frankfurter:

Suppose it doesn’t agree with it?

Walter J. Rockler:

If it doesn’t agree, then there remains the question in this case of whether or not the order in the trial court was final under 1291.

Now, that is a question which has been argued in the brief extensively in the Court of Appeals below, the Court refused to pass upon the issue because it thought it was unnecessary.

Walter J. Rockler:

And we have, therefore, in order not to avoid that question requested that it be remanded to the Court of Appeals below.

Felix Frankfurter:

And if the — suppose we hold if — if we hold it was final under 1291 whether we don’t to bother what it understand in any event, 54 (b) for taking care of a business.

Walter J. Rockler:

I think that’s right.

Felix Frankfurter:

Suppose we hold that 54 (b) isn’t qualified or appeal effectively 1291 and would still have to reach the question of doing that and that reached the question whether this satisfies the requirement of finality under 1291.

Walter J. Rockler:

I think this Court can reach that question.

In other words, I think that — the — the Court has —

Felix Frankfurter:

You mean to say, if we — if we reach that point, we might hand it back to the Court of Appeals?

Walter J. Rockler:

That is what we — that’s what we’ve recommended and proposed to this Court.

And I think the reason for that is — is — lies in the grant of the petition for certiorari.

I believe the issue before this Court is the construction to be given to Rule 54 (b).

Felix Frankfurter:

Well, I said I’d look up to review a question of you — you (Inaudible)

Walter J. Rockler:

I think you’ll find that under the petition for certiorari, there was no question presented to this Court as to how 1291 applies.

Now, in view of the —

Felix Frankfurter:

Nothing as to the (Inaudible) of this litigation.

If we — if we disagree, if we disagree with the Court of Appeals on their construction of 54 (b) and I say for information then your view is that whether it satisfies, whether it does or does not satisfy, 1291 had better be related to the Court of Appeals.

Walter J. Rockler:

Yes.

Felix Frankfurter:

That’s your position.

Walter J. Rockler:

Mr. Justice, I think that’s entirely correct.

That’s what we’ve asked.

Felix Frankfurter:

I — I understand.

Walter J. Rockler:

Now, in our reply brief, we set forth the reasons why we believe that question is more properly before the Court of Appeals.

The argument for the petitioner here under Rule 54 (b) question can be summarized very briefly.

Section 1291 which sets forth the requirements for appellate jurisdiction and has been a part of the Judicial Code, I think, since this — far back in 1789, state the following, the Court of Appeals shall have jurisdiction of appeals from all final decisions of the District Court, then I omit a part, except where direct view — where direct review may be held in the Supreme Court.

This Section is the implementing section reflecting a — a long-standing policy against piecemeal appeals.

Such appeals are barred because they tend to fragmentized litigation because the important thing in — upon appeals conserve the time and energy of the appellate court rather than the serve the convenience of the trial court.

The rule is intended to make sure that litigation comes up at a matured stage.

It’s intended to make sure that the appellate court has perspective with respect for the litigation.

And to some extent, it’s intended to prevent appeals whereby the development of litigation, a matter may become moot or subtle.

Historically and consistently, Section 1291 has required two different things.

The first thing required has been that there be a final disposition of a subject matter by the trial court.

Walter J. Rockler:

Now, this is a requirement of internal finality, finality in the sense that trial court has finished with the subject matter.

It has reserved nothing.

It’s gone as far as it will.

The Court has exhausted its will with respect to the subject matter.

The second requirement, and this lies well outside the scope of any rule of the District Court procedure, is that the matter disposed of by the trial court, the matter which is internally final, must be a distinct judicial unit.

It must separate and independent of other manners remaining to be decided by the trial court.

Neither Rule 54 nor indeed any District Court rule can do more than establish the existence of the first element, internal finality.

That is a final disposition by the trial court judge.

That is what the rule is talking about.

For convenience, we refer to this as internal finality.

Rule 54 (b) cannot and does not purport to bind the hands of the appellate court in determining external finality whether an appropriate quantum of litigation has been concluded, but differently, whether the decision discloses of a separate and distinct matter arising from a separate and distinct transaction or occurrence.

As Judge Hastie has put these two requirements of Section 1291 in the Bendix case, “Two things are necessary for a final decision.

The District Court must take all the steps necessary to complete its action with reference to the claim.

And in addition, the subject matter litigated must have enough scope to satisfy the statutory conception of final decision.”

Prior to the adoption of the Federal Rules for the District Court, practice and procedure in the District Court were governed largely by the Conformity Act which looked at the state practice and procedure.

At that time, generally, such practice and procedure did not recognize a liberal joinder of claims.

Ordinarily, you could not combine equitable and legal complaints.

Third party practice was severely restricted.

As a result of the forms of pleading and practice prior to the Federal Rules, the general rule under Section 1291, the jurisdictional section, was sometimes stated to be that the judgment in question must dispose of all issues as to all parties.

Even before the Federal Rules, however, in those relatively rare cases under the practice and procedure which prevail them, different matters were combined in the same action.

In such cases, partial judgments were sometimes recognized to be final in the appellate sense.

I refer the Court to the case of United States versus River Rouge.

With the introduction of the Federal Rules, new conditions of practice could be anticipated.

It was a liberal joinder of actions, equitable and legal actions could be freely joined, the third party practice was loosened up.

As a result, it could now be anticipated that what before was an unusual situation might now become common.

That is, that different claims and separate clauses of action might be united with a single pleading.

Original Rule 54 (b) provided as a rule of District Court procedure that the trial judge could enter a judgment upon one of several claims.

The rule had no particular reference to appellate jurisdiction nor was there any such intention on the part of the — its draftsman.

It was not construed in the Courts to affect appellate jurisdiction.

The rule was held valid by this Court in Reeves versus Beardall, a decision which, I believe, occasioned no great surprise.

Walter J. Rockler:

In Reeves versus Beardall, the plaintiff filed a three-count complaint.

First count was upon rights on a promissory note.

The second count was a count under a contract to maintain certain will provisions.

The third count was a count for money damages against the third party.

The second and third counts were dismissed in the trial court.

It was held in this Court and the courts below that the order was final as to the dismissal of the second and third counts because those counts dealt with matters which were separate and distinct from the remaining count, the promissory note count.

And each count arose out of a subject matter wholly and distinct, wholly separate and distinct.

Felix Frankfurter:

When you said it was (Inaudible) valid in this Court, Reeves against Beardall, shows no controversy about the validity of this rule —

Walter J. Rockler:

I think —

Felix Frankfurter:

— the question of whether this particular complaint came within it?

Walter J. Rockler:

I — I think that’s entirely correct.

But I think there was also a question there, Mr. Justice, as — as to whether or not the dismissal of two counts with the retention of a third was possible under the generally stated proposition as to Section 1291 that all issues and all parties had to be satisfied.

Felix Frankfurter:

It just verified my recollection.

Well, (Inaudible)

All I’m suggesting is the problem that — that thereafter that after reading this, it all — had served this (Inaudible) without any restriction that wasn’t — wasn’t dealt with.

Walter J. Rockler:

Well, I agree and that — that is the position —

Felix Frankfurter:

This was the question of Court, namely, that if we should be construed to involve the jurisdiction beyond 1291, if it grant the importance, the District Court can say something in final that they concededly not — can final it under 1291 that that would exceed the power of the rule-making that heard about this Court by legislation and —

Walter J. Rockler:

I —

Felix Frankfurter:

And — and recognized by this Court suppose they (Inaudible), isn’t that true?

Walter J. Rockler:

I agree with that entirely.

That’s exactly the position we take with respect to Reeves.

The respondents in their brief have repeatedly and instantly maintained that the Reeves case and the Second Circuit position in Collins versus Metro-Goldwyn-Mayer marked the great change in the interpretation of a requirements of 1291 because of the introduction of the Federal Rules.

They go further.

They also maintained that as a result of the Reeves and Beardall decision, authority has been given to vary appellate jurisdiction in accordance with the discretion of the trial judge, namely, there is authority to give the effect to the amended rule which the court below didn’t give.

I might say that the position of the respondent’s on the effect of the Reeves case that flatly contradicted by Judge Clark on the Second Circuit Court, a judge whose views in this area are otherwise strongly recommended by the respondents.

In the Audi Vision case versus RCA, decided two years after the Reeves and Collins cases, Judge Clark pointed out that Rule 54 (b) is and I quote him,” Essentially, nothing more than the pre-existing rule and equity providing for split judgments and extended cases.

It merely enforces what previously had been termed an exemption for matters distinct from the general subject of the litigation.”

The judge then went on to say, “This must necessarily be told because the rules do not affect jurisdiction or deal with the powers of appellate courts.”

The Reeves case, in our view, marked no change in the statutory test.

Even if they had marked some change, the Reeves case is hardly authority for an amendment which allegedly grants discretion to the trial judge, to decide whether to create appellate jurisdiction.

Walter J. Rockler:

As this Court said recently in Baltimore Contractors verus Bodinger, piecemeal appeals will not be permitted in the discretion of a trial judge upon a finding of need.

I’d like to turn the Collins versus M.G.M., which is stressed again by the respondents on this issue.

They maintained the decision there, marked the power of the Federal Rules to alter conceptions under Section 1291.

In the Collins case, a complaint was brought in two counts.

The first alleged copyright infringement and the second alleged unfair competition in appropriating the title of a book.

A motion to dismiss the first count was granted and the question was whether that dismissal was a final order in the statutory sense.

The Court held that that order was final because the transactions involved in the first and second counts was separate and different.

The Collins case did have the effect in the Second Circuit of reversing some prior decisions.

However, the reversal was not a product necessarily of the introduction of the Federal Rules.

The Second Circuit in the Collins case clearly points out that it is bringing its views into line with those of several other Circuit Court opinions and the Supreme Court.

And I refer to the Eight or Nine Circuit Court cases and Supreme Court cases cited in the Collins as a precedent for its decision.

All of these cases are pre-rules cases and they can hardly indicate the effect of the rule to change the interpretation under Section 1291.

To demonstrate how little the Collins’ results depended upon the Federal Rules.

I’d like to take one of those cases as an example.

That’s Klever versus Seawall, it arose in 1894, involved a three-count complaint.

The first count was an action for rejectment, the second count was a count for trusts with damages, and the third count was a count for petition.

Judgment was rendered for the plaintiff on all counts by default but with respect to counts two and three, further action remained to be taken.

Therefore, no sense could the order with respect to counts two and three be final.

However, the Court held that the Circuit Court of Ohio in 1894, that the judgment on the first count was final.

There was no reason to delay the appeal when the subject matter had been finally disposed of and was unrelated to other counts.

We submit that this result is very similar to the result in Collins versus M.G.M.

Similarly, (Inaudible) a Fourth Circuit Court case decided in 1904, four counts were represented.

Three counts — three of the four counts were dismissed and the Court found that these counts were sufficiently unrelated to the remaining count that a final order could be entered with respect to them.

And one of the principle problems under the original Rule 54 (b) was the question of what the trial court intended when he made a partial judgment in accordance with the rule.

These are the problem of internal finality in our terms, then the judge mean to indicate by the form of his order that he was through with the action or was his order intended to reserve some powers.

A great deal of litigation arose from ambiguities in the form of the order.

In some cases, the right to appeal was lost because the parties had not realized that a partial judgment was intended to be and was final in the premises.

A notable example of this unfortuned situation was the Dickinson versus Petroleum Conversion Corporation case decided by this Court in 1950.

To prevent these difficulties and hardships, the Advisory Committee on the Federal Rules prepared and this Court promulgated an amendment to the rules effective in 1948.

The purpose of the amendment — well, I’ve ought to read the amended rule, when more than one claim for relief —

Felix Frankfurter:

I wonder if it were all related —

Walter J. Rockler:

Yes, sir.

Felix Frankfurter:

— to deserve your argument with the different States because I know, as what my mind could run on (Inaudible) of yours, what your position is, on this problem, or you going to the nicest things and — because I have to give a decision, what is — what are you contending for with regards to the rule?

Are you taking the flat decision or — or you’re taking in the sense of the (Inaudible), what is yours?

Walter J. Rockler:

Well, Mr. Justice, I believe that there is no difference substantially in the position taken by Judge Hastie, Judge Learned Hand and Judge Frank in their various opinions in this area.

Felix Frankfurter:

(Inaudible)

Walter J. Rockler:

They — they used different language but I think the result is the same in each case.

Now, our position is this, that a Rule 54 (b) order is not final, in an appellate jurisdictional sense, it cannot be.

The Rules of District — of the District Court were never intended as media or interpreting the congressional enactment.

They — they establish finality in the lower court sense, that is to say they establish that an order has been entered which is not subject to revision.

By cross reference in the rules under Sections 62 (h) of the rule — Rule 62 (h) or they may be a stay of enforcement but the rule provides that you can’t revise it once you’ve entered the final order, that it’s substantial effect.

The rule cannot decide the question whether the subject matter on which an order was entered is sufficiently separate and distinct so that you have a final order in the statutory sense.

Felix Frankfurter:

Well, are you suggesting that the rule was merely intended to govern the procedural activity that the District does in —

Walter J. Rockler:

Mr. Justice —

Felix Frankfurter:

(Inaudible)

Walter J. Rockler:

I — I believe that’s necessarily so.

I don’t believe that the rules of District Court procedure —

Felix Frankfurter:

That may be — that, undoubtedly, must be a consequence because it does alert and (Inaudible), but if that does exhaust the — the function of the rules.

Walter J. Rockler:

I think it has to exhaust the function of the rules because otherwise the rule overlaps Section 1291 and revises it.

I don’t think that can be done in the District Court rule.

I — I’ve seen nothing in the rule which — which says that appellate courts can’t examine the decision below to find out whether the traditional elements of statutory finality are present, the rule doesn’t talk of appeals, it doesn’t talk of appellate courts.

There was a draft rule in this area, which was extremely explicit.

Felix Frankfurter:

When you say in this area there was a draft — one of that draft with reference to this —

Walter J. Rockler:

This situation —

Felix Frankfurter:

— but that draft of that, isn’t it now 54 (b)?

Walter J. Rockler:

Yes, sir.

And the draft —

Felix Frankfurter:

Oh that’s very — so this very rule had ascertained which by terms that different a folk, was that the finality came out of the Committee?

Walter J. Rockler:

I believe —

Felix Frankfurter:

Is that right?

Walter J. Rockler:

— I believe there is no question with that, Mr. Justice.

The — the predecessor Rule 63 and you can trace the history of the rules, to see exactly where 63 was replaced by 54 (b) provided an answer to the very question which is before this Court.

The predecessor Rule 63 (b) said that a final judgment entered in accordance with Rule 63 was — was final for all purposes including the right to appeal there from.

Now, that’s certainly one of the questions which is before this Court, if not the only question.

Felix Frankfurter:

So that the — the rule of those who were formulated it, those who were engaged are positively training for responsible (Inaudible) rule.

We’re concerned with questions of appealabilty.

I’m not suggesting it survived the final conflict of training, (Inaudible) the proponents of (Inaudible)

But the rule came out of a consideration of a problem, not merely binding the District Court but also — also adding the Court of Appeals.

Nothing provides that.

I’m saying that the — the history of the rule related to that problem, is it not?

Walter J. Rockler:

Yes, Mr. Justice.

But I would go further, I would say not only were the draftsman of the original rules conscious to the problem but having drafted a rule which set forth the consequences of an order for appeals purposes.

They promptly thereafter deleted it and they deleted it after a correspondence and a history of what you demonstrated that they deleted it because it trenched upon jurisdictional statutes.

I’ve tried to set some of that up from the brief from this matter.

Felix Frankfurter:

Could you tell me — I ought to know but I don’t about the (Inaudible)

Could you tell me whether the history of rules and all particularly this rules constitute material acceptable to be barred generally as it seems in public material which this Court may point — will be found in the Congress?

Walter J. Rockler:

Mr. Justice, I believe the notes of the Advisory Committee certainly have been widely circulated.

Felix Frankfurter:

The notes are part of the rule, the public (Voice Overlap) —

Walter J. Rockler:

The notes are a part of the rule —

Felix Frankfurter:

But what about the —

Walter J. Rockler:

— but beyond that —

Felix Frankfurter:

— (Inaudible) of the pleading (Inaudible)

Walter J. Rockler:

— I think —

Felix Frankfurter:

(Inaudible)

Walter J. Rockler:

I — I have not tried a law library which does not have them.

I went out to the University —

Felix Frankfurter:

Not in law libraries.

Walter J. Rockler:

There aren’t law libraries —

Felix Frankfurter:

I think there are couples from —

Walter J. Rockler:

The mimeographs of correspondents are also in law libraries and I think it’s generally known in the bar that there is an Advisory Committee and that the Advisory Committee can be contacted.

Felix Frankfurter:

(Inaudible) find out naturally what they meant by the rules.

Walter J. Rockler:

No, I — I —

Felix Frankfurter:

— isn’t that in the provision from that?

Walter J. Rockler:

I — what I meant to suggest was of the — there is an office of an Advisory Committee and that office can be contacted for materials with respect to the rules.

Felix Frankfurter:

But all of this them may become materials with a confidential, meaning that — between material that are unpublished —

Walter J. Rockler:

I can —

Felix Frankfurter:

— across the case (Inaudible)

Walter J. Rockler:

I can assure this —

Felix Frankfurter:

But the party of the — the — or it might be called the legislative history of these rules that are deposited to tell me there he draw a library.

Walter J. Rockler:

Yes, sir.

Felix Frankfurter:

(Inaudible)

Walter J. Rockler:

Yes, Mr. Justice.

I may say that I have no particular access.

I believed anything that was confidential and I tried to point out exactly where the materials I was relying on could be found in this matter.

Felix Frankfurter:

Well, it’s in the law library (Inaudible)

And then your position (Inaudible) is one known what — what can — you’re directing with your argument in analyzing in analyzing with the — it’s your position in 54 (b) as it is now binding upon the District Court and the Court of Appeals in this case, merely, is a ruler of the practice whereby the District Court, if he makes that determination, he could no longer revise it and if it has dictated, they revise it (Inaudible), is that it?

Walter J. Rockler:

That’s exactly correct.

Felix Frankfurter:

All right.

Walter J. Rockler:

And one corollary, the rule has no affect with respect to what the Court of Appeals can examine on the question of the final decision under 1291.

Felix Frankfurter:

And you say that there is an application for that — for such a rule and that they had to call the rules against it, the restriction upon the power of (Inaudible)

Walter J. Rockler:

Well, there was at one time a — a general statement of an old rule which said that all issues as to all parties had to be disposed of.

That’s the Hohorst case and — and certain other cases that have come up to this Court.

Now, as I attempted to point out, that general statement was never wholly accurate.

The general statement merely reflected the general circumstances of practice.

Ordinarily, you didn’t get the different claims joined together.

You didn’t have a liberal third party practice.

You couldn’t have a combination of equitable and legal action.

In those rare cases, where you did have a combination of different causes of action or claims, the Court — the Courts, including this Court, did decide that one — that an action of the lower court with respect to one of such combination could be a final order.

Therefore, I think the rules have taken cognizance of a change in the conditions of pleading and practice but they have not changed the statutory construction under Section 1291.

Felix Frankfurter:

And it’s your view that the reason in (Inaudible) couldn’t decide as the same way to have acting on Federal Rules.

Walter J. Rockler:

That is my opinion.

I attempted to touch on several other cases which did reach the similar result.

The River Rouge case, for example, to some extent, reaches the similar result.

The decisions of the Sixth Circuit and the Fourth Circuit in the cases cited in Collins versus M.G.M. reached similar result, indistinguishable result.

Hugo L. Black:

I don’t quite understand.

Do you mean that (Inaudible) has no consequence of any kind to upheld it?

Walter J. Rockler:

No, Mr Justice Black.

I — that’s not my intention, whatsoever, no.

Rule 54 (b) certainly had very important consequences at the District Court level.

Hugo L. Black:

What?

Walter J. Rockler:

The — the Court could indicate, the District Court Judge could indicate that he was through at the part of the action.

He — he could indicate what he intended with respect to one — one claim.

Hugo L. Black:

What effect —

Walter J. Rockler:

What is —

Hugo L. Black:

— but he could do that before, doesn’t it?

He could tell I’m enthusiast.

I’m not going to have (Inaudible)

Walter J. Rockler:

Well, to that extent — to the extent that he could do that before, I don’t think the rule didn’t make any change.

Hugo L. Black:

Well, did it make any change (Inaudible)

Do you say it has no change on the appellate level.

Now, what — except to what new situation that was appealed by the rule that didn’t exist before?

Walter J. Rockler:

In its amended form, the rule by the form which it prescribes directs the attention as Judge Clark has said of the trial court to this very problem.

In other words, as to the first element of statutory finality, whether the judges finished with an action.

The rule says, if you enter the order, we know you finished with part of this action.

If you don’t enter the order in the proper form, you’ve told us you haven’t finished the — your action.

In other words, the form —

Hugo L. Black:

What are the consequences?

Walter J. Rockler:

The —

Hugo L. Black:

(Voice Overlap) —

Walter J. Rockler:

— the — the consequence of that, I think, is largely to avoid the difficulties that arose in the Dickinson situation which this Court —

Hugo L. Black:

It doesn’t — doesn’t avoid it.

Don’t you think that to have a law, you would know whether he could appeal or couldn’t appeal?

Walter J. Rockler:

Mr. Justice Black, I don’t think that under the amended rule, there’s any question.

Every court that’s ever handled the matter has said that in this sense, Rule 54 (b) provides a very valuable aid to the District Courts and to the Courts of Appeals, namely, it avoids the problem which arose in Dickinson.

The — the parties to an action are unnoticed that the District Court Judge is through with the part of the case.

Hugo L. Black:

Well, then what can the parties do that they couldn’t have done that he had refrain from telling?

Walter J. Rockler:

Well, one thing they can do is if think that the part which has been disposed of is sufficiently separate and distinct from the rest of the subject matter if they have any question as to that.

They all noticed that they have better filed a notice of appeal.

Otherwise, they may be foreclosed.

Hugo L. Black:

Well, they — they probably review before, I guess, that — that was a very strict position and they better file notice of appeal (Inaudible) but does it give me a new information on when it can and whether it should?

Walter J. Rockler:

If I — I believe so, Mr. Justice Black.

I believe it gives them this information, if the rule, if the order is not entered in the right form, regardless of what — what the judge has said in his order unless it comes to — to a — a determination that there’s no just reason for delay and the direction for entry of judgment.

The parties know that they need not take an appeal.

Felix Frankfurter:

I don’t understand, I don’t think you may — can finally say so or declare that what is just — the one thing they should have done is to avoid controversy in the Court of Appeals that — that matter on which an appeal has thought and have been concluded and it leads within the sympathy of lawyers with different opinion among the judges whether in effect, the District Judge had finished.

If he hadn’t finished, then it isn’t final under 1291.

(Inaudible) and you’ve got conceded with the evidence, conclusive evidence, that he is finished, can they go on to the second question, namely, wasn’t the kind of things under 1291 appeal, isn’t that right?

Walter J. Rockler:

Mr. Justice Frankfurter, you’ve stated our view with respect to what the rule does exactly.

Hugo L. Black:

What did it settle?

Walter J. Rockler:

I think the rule said it’s just that.

It says —

Hugo L. Black:

I say what did it settle?

Walter J. Rockler:

On — on the appellant level, it settles much.

In the District —

Felix Frankfurter:

But that settles that —

Walter J. Rockler:

It settles — settles —

Felix Frankfurter:

— (Voice Overlap) a finality inform which is the free condition to any kinds of appeal.

Walter J. Rockler:

I believe that’s right.

I —

Hugo L. Black:

It has a statement from the judge that they aren’t finished before you get against whether he’d finish or not, is that it?

Walter J. Rockler:

That’s a very important difference.

Felix Frankfurter:

That’s a lot (Inaudible)

Hugo L. Black:

That was one of the fine targets in the Dickinson case?

Walter J. Rockler:

The — this Court, for example, the — examining the judgment in the Dickinson case, I think split six-three as to what — what the trial judge had intended.

Therefore, the — that effect to the rule is certainly very important.

Stanley Reed:

If you would have gotten exactly the same effect in the rule, if you hadn’t said final.

Walter J. Rockler:

The original rule, Mr. Justice Reed, did not say final.

The addition of the word “finalI”, I don’t think makes any difference.

I — it — it may have to convey more of the sense of finality at the trial court rather.The trial court —

Hugo L. Black:

But he doesn’t amended our thought which are the pretty bad situation there because you couldn’t know whether you could feel or not.

It still left in the same situation in 54 (b) according to your argument.

Walter J. Rockler:

But Mr. Justice Black, I believe he should be.

The trial court —

Hugo L. Black:

(Voice Overlap) whether he should be he still is?

Walter J. Rockler:

He still is.

If — if the order is not entered in accordance with Rule 54 (b) forms, he — he still is.

Hugo L. Black:

Well, if he — if it — if it done in an accordance to it.

He showed that there’s much doubt as to whether it’s appealable, isn’t it?

Walter J. Rockler:

If it’s entered in accordance, he may have some doubt.

If it’s not entered, he has no doubt at all.

Hugo L. Black:

I say, he has no doubt that the judge said that it is not found.

Walter J. Rockler:

Well, but that but — but —

Hugo L. Black:

(Voice Overlap) that’s the final at the (Inaudible) part.

Walter J. Rockler:

But in the appeal sense, it is very important, it’s one element of finality that the judge says that is final.

In other words, if the judge said its not final, you are always lacking one element of appealability.

Felix Frankfurter:

Mr. Rockler you have to conceive the doubt that the terms of the concept of finality, the term “finality” coming down from the 1789, it is — answer all questions as to what is final.

Walter J. Rockler:

I would certainly —

Felix Frankfurter:

That was a conscientious question had been from 1789 but the area of contention is relevantly limited.

But there are difficulties that have been — I don’t know how many cases I’ve encountered but not to give one problem from 1789 on or whenever this place came up as to when Judge (Inaudible) final —

Walter J. Rockler:

I would —

Felix Frankfurter:

— and — and that belong in 1291 stand.

Felix Frankfurter:

That’s the problem, that’s then the problem for this Court to decide when a state court judgement is final.

We have difficulties (Inaudible) but on the whole, we don’t have great barrier.

The cases coming to this Court, namely, that a state court judgment would be final and this Court has differed on that in 1789 in the number of cases fundamentally remains free through (Inaudible)

Walter J. Rockler:

I would certainly be prepared to make that concession.

In fact, I’ve think I’ve covered some of that ground in the brief which we filed in this case.

We don’t need —

Hugo L. Black:

As I understand it, I want to be sure, do you argue here that this contended that we could (Inaudible) from 1789 on this field that this Rule 54 (b) does not and was not designed of the reviews of the contention vested all insofar as appealability is concerned.

Walter J. Rockler:

Mr. Justice Black, no, that — that I don’t think is my position.

To some extent, it does reduce the contentiousness because it puts the party unnoticed as to what the trial court judge intended and tells him that he is either finished or not finished with his action.

If he is not finished, clearly there’s no appeal.

In the converse situation, the affirmative situation, when a rule is entered, I think, the contentiousness still exist.

Hugo L. Black:

Well, if the judgment remedy has demanded he’s ordered to pay $5000, he has a pretty good idea of that finished — (Inaudible) whether the judge said I’ll pay tonight, (Inaudible)

Walter J. Rockler:

That is true, but then take the situation which were presented in the Dickinson case, was that judgment complete or not?

I think the situation of the Dickinson case, similar cases like that (Inaudible) it was an old Circuit Court case has — has the problem presented there has been eliminated.

But by no means, as the amended rule eliminate all the problems of finality on any construction, I believe, and moreover, there are a lot of problems with respect to statutory finality which the rule could not possibly touch.

Felix Frankfurter:

What if the other, if your opponent’s argument come and he anticipated but if the position of such party (Inaudible) then the rule does permit the District Court to determine effectiveness of the Court of Appeals to this Court, what is the final judgment of the District Court (Inaudible) can make to certify this is in the final judgment to determine 54 (b) in that finality.

Walter J. Rockler:

I think that’s right, Mr. Justice Frankfurter, but I believe it comes about through the backdoor.

Felix Frankfurter:

(Inaudible) but all I’m saying is that when a great big difference that 54 (b) is construed that Judge Clark wants to construe then it does take it here of all the contention, so far as the Court of Appeals (Inaudible)

And the District Court to determine before the Courts of Appeal and this Court when there’s an appeal of a judgment —

Walter J. Rockler:

That —

Felix Frankfurter:

— is that true?

Walter J. Rockler:

— that I believe is true.

But Judge Clark, when he construe with Rule 54 (b) at the appellate level, will examine for statutory finality in around about way.

He’ll look into the multiplicity of claims and reincorporate all the statutory tests.

So, I believe that Judge Clark’s interpretation while it gives a very definitive affect to Rule 54 (b) comes around in a circle whereby the Court of Appeals looks to the same things that all we did look to under Section 1291.

Felix Frankfurter:

What?

Walter J. Rockler:

Well, Judge Clark in a number of opinions after Pabellon has announced that were you have a claim and a counterclaim or an affirmative defense and dismiss one or the other, the question of whether you have multiple claims although they appear to be multiple claims in the sense of other courts is a question of whether the subject matter of those claims and counterclaims is separate and distinct.

Now, that to me is just a way restating the test of external finality.

Felix Frankfurter:

That isn’t the ground on which it’s been going on to this main of this — this great fierce battle that’s been taking place (Inaudible) and it was written on opinion which is, he want to accomplish the implication of a lack of questions, namely, now, shut the door to all of these nonsense, finding upstairs (Inaudible) final judgment provided the District Court certify that is final (Inaudible)

Walter J. Rockler:

I believe he had said as much — so many times over in some of his opinions.

Walter J. Rockler:

In other opinions, though, I believe he’s receded somewhat from that position.

Hugo L. Black:

I didn’t mean to leave an implication about (Inaudible).

I just was trying to find out whether the lawyers who have the judgment there, as in more reasonable grounds to think maybe it’s possible that you don’t know whether he could feel about that it’s the (Inaudible) Rule 54 (b) was an enacted or is he still there going to — what might be said, he had slight may (Inaudible) uncertainty of whether his judgment feels —

Walter J. Rockler:

Or where you have an affirmative order, he’d left in a considerable (Inaudible)

Thank you.

Earl Warren:

Mr. Rothschild.

Edward I. Rothschild:

May it please the Court.

About a year and a half ago, the petitioner herein filed in the Court of Appeals a motion which appears at page 39 of this record which in pertinent part eliminating the two paragraphs which are purely dilatory.

In pertinent part, asked that — that court to dismiss the appeal taken herein for lack of a final and appealable order meeting the requirements of Section 1291.

We have sat here as the Court has and heard nothing with respect to whether or not this order is final and appealable under Section 1291.

The petitioner apparently defaults on this issue on the ground battle.

The Court of Appeals in this case may have used language in its opinion which indicates that that question was not an issue.

I should like to call the Court’s attention to this, directs its attention of this very simple motion that was made in the Court of Appeals and a very simple order which was made and appears on page 47 of the record.

It is ordered and adjudged by the Court that the motion to dismiss this appeal be and the same is hereby denied.

The emotion again was to dismiss the appeal for lack of a final and appealable order meeting the requirement of Section 1291.

There is no suggestion by petitioner that this order was not final, none whatsoever.Petitioner doesn’t discuss the question of finality preferring to suggest to this Court that that question go back to the Court of Appeals.

I would like to place the —

Felix Frankfurter:

I think your argument said it is final under 1291?

Edward I. Rothschild:

Yes, Your Honor.

It must be final under 1291.

Section 1291 —

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

— to be appealable.

Felix Frankfurter:

Be appealable?

Edward I. Rothschild:

Yes, Your Honor.

Felix Frankfurter:

(Inaudible) 54 (b) is not qualified as 1291.

Edward I. Rothschild:

Yes, Your Honor, 1291 determines the appellate jurisdiction.

Now, 54 (b) does some thing but it does not determine appellate jurisdiction.

Felix Frankfurter:

Does it change what was — what could have been interpreted to be final under 1291?

Edward I. Rothschild:

No, sir.

Edward I. Rothschild:

It does not in my opinion.

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

The — what — what 54 (b) does, if I may —

Felix Frankfurter:

That means if you agree (Inaudible)

Edward I. Rothschild:

Your Honor?

Felix Frankfurter:

If we agree with you, I mean to say that you don’t have to follow what 54 (b) means?

Edward I. Rothschild:

That is correct, Your Honor.

And I may say that the — the first point that I want to make —

Felix Frankfurter:

I hope you’re right.

Hugo L. Black:

But we ought to be has not able to pursue the rule that would be the statute, doesn’t it?

Edward I. Rothschild:

That is correct, Your Honor, and that is the reason why you should not send this case back to the Court of Appeals.

Here is the question that is the question of this Court rule and no local law questions involved, there are no —

Felix Frankfurter:

The rule (Inaudible)

Edward I. Rothschild:

Your Honor?

Felix Frankfurter:

(Inaudible) —

Edward I. Rothschild:

No.

The —

Felix Frankfurter:

— upon the appealability?

Edward I. Rothschild:

No, sir.

I didn’t — if I said that, I didn’t mean to.

What I mean to say is that jurisdiction is determined by Section 1291 which is the jurisdictional statute.

The — the operation of Rule 54 (b) operates within that jurisdictional statute.

Felix Frankfurter:

(Inaudible) make that appealable which before the enactment then promulgation of the rule would have been to prevent 1291.

Edward I. Rothschild:

It may.

Yes, Your Honor.

But there is no change in 1291 and that — there — my thesis on that is fairly simple, you may not agree with it but it’s fairly simple.

I —

Felix Frankfurter:

(Inaudible) understand it before (Inaudible)

Edward I. Rothschild:

I say this —

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

I say this, Your Honor, that you take an order that was entered by the District Court and I’ll get the automatic and conclusive which is just frightening itself, (Inaudible) for the Court.

The Court of Appeals or this Court, if it comes to (Inaudible) determines three things on and amended 54 (b) finding and it must determine those three things in order to determine whether Section 1291 appealabilty exist.

It determines first whether multiple claims are involved.

If there are not, then Rule 54 (b) has no application.

It determine second whether the disposition of the claims upon which an appeal was taken is final in the sense that have those claims been the sole claims then issue or have that claim in the sole claim and issue, would the disposition made by the trial court have been appealable and that determination is the determination that satisfies 1291.

And if that determination —

Felix Frankfurter:

What is that?

Edward I. Rothschild:

— must satisfy 1291.

Felix Frankfurter:

(Voice Overlap)

Edward I. Rothschild:

It must satisfy 1291 and I will never argue that it — that –that can bootstrap yourself around 1291.

And I say that in — on this thesis, this notion of final finality which has come down from the original Act has not changed.

The basic concept is the same.

Now, there have been changes in what cases are appealable.

Cases are appealable now or under the original rule which would not have been but they are still appealable under 1291 because there’s the satisfaction of this finality requirement with respect to the particular claims and issue and that’s all what Reeves says.

Reeves doesn’t says that 54 (b) changed 1291.

It just said that it was the pleading that were permitted.

Under the rule, you can take all a lesser segment, a lesser quantum and use Judge Hastie’s language of the litigation.

And if that is disposed of in a manner that is final in the sense that it was appealable with the — with the sole claim and issue, then 1291 is satisfied.

Felix Frankfurter:

That includes before 54 (b) was in the (Inaudible) that you can set litigation then (Inaudible)

Edward I. Rothschild:

Well, I — pardon me?

Felix Frankfurter:

If I can (Inaudible)

Edward I. Rothschild:

Yes, Your Honor.

I am not here to argue that a tremendous and radical change has been made by — either by the original rule or by the amended rule, 1291 is still there and still must be honored.

Now, there are — are things done within 1291 which were done by the original rule, which were done before the original rule and which are done now under the amended rule.

But I want to point out to this Court that we have not heard one word from petitioner as to the basic question and issue, did the Court of Appeals directly denied the motion to dismiss or to put another way, was the — the District Court (Inaudible)

Felix Frankfurter:

And now, the Court — the Court of Appeals does review the petition (Inaudible)

Edward I. Rothschild:

They didn’t deal with the case in a way in which I urged them to deal with the case.

They did in part, Your Honor, in its quotation from Bendix which I will come to.

The Court of Appeals recognizes that there must be this determination of multiplicity of claims and finality with respect to the claims and issue.

It did not deal with the free 48 or free amendment situation.

Felix Frankfurter:

No.

But it — you told me that language, I don’t see that quotations are amended directly or if Judge Learned Hand (Inaudible) in order to reject it.

Edward I. Rothschild:

That may be, Your Honor.

But —

Hugo L. Black:

Do you think — do you think that the brief can decide which case by construing the Act of Congress passed (Inaudible)

Edward I. Rothschild:

I don’t think there is that create dilemma, Your Honor.

I think if I get the gist of your question that — that the answer to that is that this rule operates within 1291 and should be so interpreted.

I’m not sure I answered your question.

Hugo L. Black:

Well I — I understand you are (Inaudible) and we won’t have to read this more difficult question about — prepared by you?

Edward I. Rothschild:

Well, I’m an advocate and I’m perfectly delighted to have the Court decide it my way in any or with passionate wishes but I think the proper analysis is to — to fit this rule into the — into the Section 1291 even not to rely on the enabling act which is some of the so-called affirmative view judges rely on.

Felix Frankfurter:

(Inaudible) your understanding that the conflict within the Second Circuit among the (Inaudible)

Edward I. Rothschild:

All right.

May I state it this way, Your Honor?

I think that conflict is very largely a conflict of labors.

Felix Frankfurter:

Labors?

Edward I. Rothschild:

Of labors.

The conflict —

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

They certainly got hot about it and I suppose they are still hot about it although the source of the conflict has been eliminated by the overruling of Flegenheimer.

In a recent case Rieser versus —

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

Well, they say we expressly reject that Flegenheimer is no longer the law in this Circuit.

They say — they think they’re overruling, as they in word and Judge Frank who is — is not pleased, acknowledges that they have overruled it on the basis of two earlier cases in the Court of Appeals and he goes along with the overruling.

But my point on affirmative and negative which I believe Mr. Justice Frankfurter is asking me to speak on is this, I really don’t think there s a great deal of difference as applied to particular cases.

Now, I will acknowledge that the negative effect, that is to say absence of the 54 (b) finding, you cannot appeal, is (Inaudible) so to speak, that does determine one complete set of situation.

If there is no appeal and no then all of the Court of Appeals have gone along on that.

But I do not go to Judge Clark an automatic and conclusive in the sense that you could take your 54 (b) stamp and put it on anything and have a — an appealable order under 1291 because that would fly in the face of — of Section 1291.

And my position is, I’m not sure I’m answering your question but I make it toward around the belt, is that the Court of Appeals should, they can and they do review this 54 (b) findings for these three things, multiple claims, finality as to the claims upon which the appeal has based, tested as sole claims and issue and possibly even abuse the discretion in making the finding of no just reason for delay which can be reviewed just us any other finding of —

Felix Frankfurter:

(Inaudible) that the District Court construe with it or — or that is to define (Inaudible) satisfied 1291.

Edward I. Rothschild:

Finality, as far as I’m concerned, the word “final,” the words “final judgment” when used in this area in this context by words of conclusion, meaning appealability and if they don’t advance it very far to — to have new answers on the reason and the meanings — meaning of the word itself.

Edward I. Rothschild:

There are words of conclusion meaning appealabilty.

Felix Frankfurter:

I didn’t (Inaudible)

Edward I. Rothschild:

And were so on — and — and I feel that the introduction as Mr. Justice Reed has suggested in his question of the phrase final judgment into the amended rule for the first time was for the deliberate purpose of inserting this intention to connote appealability.

Final judgment in this area means, “You can go upstairs now, I’m through.”

Felix Frankfurter:

I thought I understood you this as I’m now your (Inaudible)

Now, I thought I understood you to say that evidence be erroneous that is to admit that that no matter what kind of an ordering issue, no matter what kind of an — what the District Court does, you cannot have review by the Court of Appeals unless its satisfy 1291.

Edward I. Rothschild:

Yes, Your Honor.

Felix Frankfurter:

Do I now understand you, Mr. Rothschild, what the District Court can determine whether it does satisfied 1291?

Edward I. Rothschild:

No, sir.

Felix Frankfurter:

So, that whether it does or doesn’t satisfy 1291, it’s still enough (Inaudible) in issue for the Court of Appeals to determine it.

Edward I. Rothschild:

There’s no question about in my view and that’s what I depart from Mr. Clark, Mr. — with — in Judge Clark.

Felix Frankfurter:

That — that of course (Inaudible)

Edward I. Rothschild:

Yes, Your Honor.

Stanley Reed:

This — the District Court determines for itself in its findings.

Edward I. Rothschild:

It determines for itself and for us as the preliminary matter.

Absence of such a finding, we’re not here.

Stanley Reed:

Nothing to review in the Court of Appeals?

Edward I. Rothschild:

Yes, Your Honor.

And the difficulty —

Felix Frankfurter:

We’re trying to get into the Court of — you can’t open that door (Inaudible)

Edward I. Rothschild:

That’s correct, Your Honor.

Felix Frankfurter:

Well, that piece of paper doesn’t allow you to think.

Edward I. Rothschild:

That’s correct.

And if I may say so in response to the line of question that Mr. Justice Black is putting the counsel for petition.

You are not in the same place you were prior to be amended rule.

You are (Inaudible) because if you follow the — the view that it has only negative effect because here we come, Mr. Dickinson comes back to this, to the trial court, he will say of the — to the corporation that is involved on the dealer.

Along he comes then this order has entered.

Now, he can’t afford not to appeal just as Mr. Mackey in this case could not have afford, not to afford if not to appeal.

If we had not appeal in this case in the face of that finding, we would have taken a very substantial risk that at the disposition and after the disposition of the entire case, and we would then appeal we would be met just as they were in Dickinson by the argument you ought to have appeal — look we made this finding we told you to appeal.

Felix Frankfurter:

So, it just entered an order of Mr. Mackey’s short finding?

Edward I. Rothschild:

The judge entered the order submitted to him by Sears, Roebuck & Company the petitioner here who acknowledged in their brief in the Court of Appeals that at the time of the entry of the judgment they thought it was final and appealable.

Felix Frankfurter:

Well, all — so long as is it goes your mind you might (Inaudible) because although there’s the judgment from the District Court that this statement that have been progressive and within of its judgment and appeal about against in which you say you must —

Edward I. Rothschild:

No.

It’s the fellow against to whom the judgment has entered, Your Honor, I misspoke if I said in this case.

Because you see, prior to this stamp of approval thought as the — you at least have an opportunity to guess ,well, should I appeal or can I take a chance that this is not final.

But I don’t believe any practicing lawyer would not appeal losing as we do in the District Court in the face of such a finding and so I say that it tends to argue that some affirmative effect should be given to the rule.

But I still say —

Felix Frankfurter:

The Court of Appeals may still throw you out and not satisfy 1291.

Edward I. Rothschild:

The Court of Appeals still may throw us out and I say it’s under a duty to examine that question.

Now, I would like —

Hugo L. Black:

(Inaudible) do that of what you heard that that is the cause?

Edward I. Rothschild:

What have I heard?

Hugo L. Black:

Outside of the Court, if they throw us the appeal on the (Inaudible)

Edward I. Rothschild:

Well, suppose I’m thrown out here, Your Honor, I’m hurt about 2 and half years.

Hugo L. Black:

Or is just time.

It’s just the part of the inherent on (Inaudible) of what find?

Edward I. Rothschild:

Well, certainly, if the place on that basis but to the litigant —

Hugo L. Black:

I’m not getting any ideas that is there anything more involved in this section, the final analogy.

I’m — I’m really asking you to consider because I don’t know.

If they know they would try to appeal (Inaudible) believes the one to be barred or have any right to take it away from you, it’s finally taken away.

Edward I. Rothschild:

— I’m not —

Hugo L. Black:

Suppose you win or you lose, either one of you have any right to finally taken away from here that can’t ultimately be settled under the federal court?

Edward I. Rothschild:

Well, if don’t appeal I may be in trouble —

Hugo L. Black:

Of course —

Edward I. Rothschild:

— that’s my point.

Hugo L. Black:

— that’s why I agree with that.

Edward I. Rothschild:

I’m forced to — to multiple appeals as involved what it amounts to.

Hugo L. Black:

Multiple appeals that uncertainty as to whether —

Edward I. Rothschild:

Whether it be heard on the merits.

Hugo L. Black:

— almost of it.

Felix Frankfurter:

You mean to say you shouldn’t fold your arms and say, this is part of the immigrated and the organic litigation for the moment you said I’m out, that I might (Inaudible) and so on to take party interest.

I’ll just fold my arms for present as (Inaudible) fold my arms, my counsel would continue to call the watching brief for me until the litigation is over (Inaudible)

Edward I. Rothschild:

Your Honor, I say to you as a witness on the practical side that there is no practicing lawyer who would afford — who could afford to fold his arms under these circumstances.

Felix Frankfurter:

Even your right with this that remain unread and — and nobody — the requirement of financing not counted (Inaudible) or they should or shouldn’t be there and he live under both (Inaudible), but never mind.

That’s immaterial about the question of the party.

But so long as that is the part of the federal — to state these principles that that will be the inconsistency (Inaudible)

Edward I. Rothschild:

Well, all I’m suggesting is that this rule, some effect is not given to it multiplies the hazards —

Felix Frankfurter:

Needlessly.

Edward I. Rothschild:

— needlessly.

That’s all I’m suggesting.

I would like —

Hugo L. Black:

Because the word “finality” is so indefinite that will — we can’t have what the judges (Inaudible)

Edward I. Rothschild:

Even after they have said so in accordance with the rule that fell out the way to say so.

Felix Frankfurter:

(Inaudible) part of it without these briefs in particular cases it can (Inaudible)

Edward I. Rothschild:

I would like if I may to the address —

Stanley Reed:

Before — before you go on to that —

Edward I. Rothschild:

(Inaudible)

Stanley Reed:

Can — in this case prior with Rule 54 (b), if you have thought (Inaudible) could you have thought desirable to take an appeal?

Edward I. Rothschild:

Prior to the original rule, Your Honor, or to the amendment?

Stanley Reed:

Which is it?

Edward I. Rothschild:

Well, that’s a very difficult question to answer, Your Honor, because I have some doubt as to whether this pleading could have been filed prior to the original rule.

It is so (Inaudible)

So, many counts involved that I have some doubt really that this particular pleading could have been — could have raised this issue prior to the original rules because of the multiplicity.

Stanley Reed:

They are all counts if I understood your argument, the violations have serious failure of the caveat (Inaudible)

Edward I. Rothschild:

That is not so, Your Honor, and I want to adjust myself with that.

Stanley Reed:

There’s no reason that this (Inaudible) but he could — what I was trying to find out is — is whether or not the circumstances in this case, a rule has performed any motion to control since they have been as (Inaudible) even without the rule.

Edward I. Rothschild:

Well —

Stanley Reed:

Back into the Dickinson case here.

Edward I. Rothschild:

As I say it’s very difficult to answer that question because it is even more abstract from the question of petitioner wishes you to decide because I doubt very much at this very pleading could have come up this way under the free rule practice before the original rule themselves.

Stanley Reed:

As I understand the pre-rule effect that it was (Inaudible) absolutely.

Edward I. Rothschild:

Well, the —

Stanley Reed:

That was suggested in —

Edward I. Rothschild:

The general doctrine was that it has to dispose of all matters in controversy before our party.

But I think I would cover that in the course of discussion of the pre-amendment situation.

I am suggesting and I’m urging to this Court that this order was appealable prior to the amended Rule 54 (b) and that it is almost the waste of this Court’s time or an imposition in this case to discuss the appealabilty under amended Rule 54 (b) because all judges, all parties concede that where the order would have been appealable prior to the amendment to the rule, the record defining having been made under the amended rule, the order is appealable.

And to discuss that, which we feel is conclusive of this case, I should like to discuss the complaint itself.

Some comment has been made by petitioner really directed to the arrangement of the complaint.

The claims involved here are separate and distinct under preamendment or original Rule 54 (b) standards.

Three historical events took place, so to speak, physical facts, this is not one fact with several cause of action alleged out of it.

Mr. Mackey was in the lamp business in 1949 and Sears drove him out of it, so it is alleged.

Subsequently, in 1951 and1952, Mr. Mackey was — had a an advantageous contract for commissions, and Sears, by means of a threatened boycott of the other contracting party who also (Inaudible) with Sears, forced or induced the breach of that contract, a second physical historical event.

At — at or about the same time, Mr. Mackey threw a time saver, a corporation wholly owned by him, was driven out of the two businesses or sought to be by means of unfair competition in top of an infringement.

And as I suggested in the Court of Appeals, that it’s somewhat — is this Mr. Mackey had been selling on one street corner in 1949 and been hit by a Sears truck.

And in 1950, standing on another street corner was hit by another Sears truck, and in 1951, standing on a third street corner was hit by a third Sears truck and at that point scratches his head and besides there may be something more to this than just an accident.

And that’s what’s involved here, you have three very separate incidents of business oppression, predatory conduct which are setup as common law causes of action with diversity, and a fourth cause, an antitrust cause that this was all entered as an over all scheme of predatory conduct with the specific intent to drive him out business, to discipline Sears suppliers and to monopolize trade of commerce in the area operated in by Mr. Mackey.

This is not just a question of arrangement of — of count.These are separate physical events as I conceive them.

Now, under the standards of Reeves versus Beardall and Collins versus Metro-Goldwyn Pictures, it is perfectly clear that the order entered by the District Court in this case would have been appealable.

It satisfies the 1291 requirements and there’s no reason for this Court to concern itself with the question that may be raised by the case that needed to be argued after as to what the effect of the amended rule is in a case which may not have been presented in appealable order under the rules prior to the amendment in 1948.

That is to say, here we have an order, I don’t care what system you use, take petitioner’s view, take Judge Clark’s view, take Judge Hastie’s view, take the view of Gold Seal and then the in the Court of Appeals for the district that this order would be appealable and what is all is shouting about.

Now, I’m perfectly willing to defend, what I would call a modified affirmative view that is to say that the Courts of — that the rule has some affirmative effect and perfectly willing to defend the rule and the original rule as being consistent and not in violation of Section 1291.

But I say to the Court that — that is all unnecessary to the decision of this case.

Here is an order clearly appealable under the original rule.

The magic phrases have been entered.

There’s no suggestion of the Court that views this discretion in finding no just reason for delay.

There’s no suggestion that multiple claims aren’t involve.

Here is the very kind of case for which both the original rule and the amended rule were intended to apply.

And I say that this Court can dispose of this case without reaching the amended rule question just as I say and I will not urge here out of respect for the Court wish to determine the Rule 54 (b) question that I believe that this order may be appealable under Section 1292.

But I would like to put in my defense of the affirmative view modified, as I say it must be, to require the Courts of Appeals to do just what they have been doing.

And the — and the cases in which they have been doing it are set out that the pages and the footnote at pages 38 and 39 of respondent’s brief.

The Courts have been reviewing this.

Edward I. Rothschild:

There’s no automatic and conclusive, you couldn’t take an order like the order in Cobbledick versus United States put a 54 (b) finding on it and come in to Court and ask to be heard by Court of Appeals.

That is not a final order under 1291.

Now, I should like to say that on the affirmative view, so called, there really is no technical conflict in the Circuit.

The Flegenheimer decision according to the — to the Second Circuit itself is no longer the law in that Circuit.

There is no other decision, I say decision technically, which upholds the negative view.

Judge Hastie in the Bendix case, on the contrary, imposes the same kinds of test that I’m urging this Court to state for the Court of Appeals and the District Court as to what the amended rule does.

In other words, Judge Hastie, a petitioner has pointed out, says you have to have multiple claims.You have to have a certain quantum of litigations, scope of the claims as he put it.

He finds in the compulsory counter claims case, these multiple claims are not involved.

I don’t need to reach that question and I understand that that question or part of that question before the Court in the case that follow, that finding not only a single claim was involved, he says that the Court has no power under 1291 to confer appellant jurisdiction, if you will, and that is the same kind of analysis that I’m urging on the Court.

In the Gold Seal case which is the only other court as (Inaudible) so-called negative view.

Harold Burton:

Well, could Congress have passed this in a form of an act like as this rule.Suppose Congress had passed this in form of an Act of Congress?

Edward I. Rothschild:

I should think it could, Your Honor.

Harold Burton:

Yes.

Well, then why can’t Congress in the exercising its part and judgment with this Court in promulgating the rule which is in effect the statute to do it?

Edward I. Rothschild:

Well, that is an argument that is made and I’m — I stated to the Court that I’m suggesting that that argument is a valid argument but I do not rely solely on it because I — into your speaking of the enabling act which gives the — the rule of the force of statute and if the statutory problem, the enabling act prevails.

Felix Frankfurter:

But that doesn’t enable that that couldn’t help, what the scope of the rule is but that doesn’t tell us so that the Congress speak no more than that 54 (b).

That was then implied beyond the ruling of 1291 which says (Inaudible)

Edward I. Rothschild:

No.

But as I understand the question from Mr Justice Minton, if Congress said to us specifically, “Now, we want to change 1291 to this extent to give the Court, the District Court the right to put a stamp on anything and make it appealable.”

Felix Frankfurter:

Make it appealable.

Edward I. Rothschild:

They could do it.

However, unwise it may be.

Felix Frankfurter:

But before you get to that, they must decide whether they have done and before you decide that they have done so, you want to take a long (Inaudible) in Sears Company would have to invade if the federal jurisdiction (Inaudible)

Edward I. Rothschild:

Well, I’m not suggesting that they go (Inaudible)

Felix Frankfurter:

You don’t know?

(Inaudible)

Hugo L. Black:

May I ask you?

Do you — you said several times as I observed 1291, it is your position that this is appealable under 1291?

Edward I. Rothschild:

Yes, Your Honor.

And it’s my position that it must be appealable under 1291 or I can’t come in.

Hugo L. Black:

Appealable under 1291 and its clear that it is.

What rule do you have to do with this (Inaudible)

Edward I. Rothschild:

Well, the rule has to do it, if I may say so, solely —

Hugo L. Black:

But I want you to say.

Edward I. Rothschild:

— solely because in the Court of Appeals opinion to whom unfortunate language was used upon which petitioner (Inaudible) to urge this Court to say to the Court of Appeals, “You used some bad language.

Your decision may be right but you used some bad language.

Now, go back and use the right language.”

Hugo L. Black:

Suppose they did?

If — If you’re — and I term that you’re saying as to take the parts of the same — the judgment to this appeal has no relation (Inaudible) to — that were still left undecided to these separate parts of the complaint?

Edward I. Rothschild:

Yes, Your Honor.

Hugo L. Black:

They’re just separate cases.

Edward I. Rothschild:

There could be separate cases.

Hugo L. Black:

Could not — have not to do with one another?

Edward I. Rothschild:

They could be separate cases.

I can’t say, Your Honor, they have nothing to do with each other.

They could be separate cases there, separate in the terminology of original Rule 54 (b), yes.

Hugo L. Black:

Now, forgetting 54 (b).Let’s suppose it has never been said.

What would happen in reference (Inaudible)

Would you had to file under separate rule?

Edward I. Rothschild:

Well, I get confused.

That’s — antedates my practice.

But in my understanding that this type of a complaint would have been troubled them under the free rules practice because of the multiplicity.

Hugo L. Black:

Could — couldn’t —

Edward I. Rothschild:

And that you may not have — have been able to raise this question that you’re suggesting under the pre-rule’s practice so that — I don’t how I can answer that.

I —

Hugo L. Black:

What I have in mind — I don’t know that it’s — it may not be covered to ask it that exists.

If then, if have you have appealed to this judgment, if you have appealed, if a final disposition of causes of action have nothing to do that are not related (Inaudible) to be filed wholly separate in part, there’s nobody to define, there’s nobody that can impose of that they are final under 1291.

What relevance, except for the fact that’s been mentioned before if 54 (b) have to (Inaudible)

Edward I. Rothschild:

Well, the relevance that it has again is the opening of the door.

That is to say under the amended rule, the door doesn’t even open unless the stamp is put on.

Hugo L. Black:

But the stamp is on.

Edward I. Rothschild:

The stamp is on it and I — and I —

Hugo L. Black:

You don’t.

Edward I. Rothschild:

— and I say to Your Honor —

Hugo L. Black:

If — if that rule was intended to give and give enough there without the stamp, that rule has no relevance because the stamp is on it, is that right?

Edward I. Rothschild:

Yes, sir.

Hugo L. Black:

Well then, what other relevancies —

Edward I. Rothschild:

Well —

Hugo L. Black:

— that you have?

Edward I. Rothschild:

— that gets to the question which is the difficult question, even assuming you are — the Court is with the respondent on the — on the case and that is —

Hugo L. Black:

Well, I’m not —

Edward I. Rothschild:

Really —

Hugo L. Black:

(Inaudible)

Edward I. Rothschild:

Well, I was going to —

Hugo L. Black:

(Voice Overlap) much uncertain (Inaudible)

Edward I. Rothschild:

Well, I was going to adopt the question because I don’t want to be presumptuous but I’ll discuss it because, I think, it’s the question of the Court that must determine.

That question, as I see it, falls down to what orders are appealable now that would have been prior to the amendment to the rule.

In other words, have you advanced anyone you get for the stamp or are the test the same as prior to be amended rule.

Hugo L. Black:

I didn’t intend to get there and I understood you to say that they’re just the same under 1291, appeals (Inaudible)

Edward I. Rothschild:

Yes.

And then, I say that leaves logically to the question, what, even under the affirmative view, what happened?

What is there new about the stamp of approval, granted that — with all that you can’t get in, can you get in if you have it if you couldn’t have gotten in before.

Now, I say you need to reach that question on this case because you could have gotten in before.

You could clearly come in here prior to the amended rule.

Felix Frankfurter:

Could you tell me that there is — that the test of appealability under 1291, so far as finality is concerned, has not (Inaudible) because of 54 (b)?

Edward I. Rothschild:

Yes, sir.

Felix Frankfurter:

Would you mind the question of multiple suits (Voice Overlap) —

Edward I. Rothschild:

Yes, sir.

Felix Frankfurter:

— or different problems.

They are all derived from the kind of litigations (Inaudible)

Edward I. Rothschild:

That’s correct.

Felix Frankfurter:

I’m not concerned with that point.

I am concerned because I think it is deeply concerned because the — the importance I have had to the principle of 1291 unless I find that Congress really has undercover.

And I understood you in the — (Inaudible) because I think that language for that, the test for criteria to lead the judgment whatever you call it, of what is final under 1291 has not drank the content of appealability that the 1291 had not drank (Inaudible) of 54 (b), is that right?

Edward I. Rothschild:

Well, let me — let me try to reassure you again.

Felix Frankfurter:

All right.

Edward I. Rothschild:

I say —

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

I say this, Your Honor, that if you will take out of a multiple claims case, one claim that has been disposed of — in “dispose of in the District Court with the others left undisposed of in the District Court.”

You then examine the disposition of the particular claim on conventional 1291 standard, it must be — now, getting the words of art, a final judgment in the sense that if it where the sole claim in suit, it would now be appealable.

And I say that, that affect 1291 and I think that’s the basis upon which I reassure you —

Felix Frankfurter:

(Inaudible), you remember the Cobbledick case?

Edward I. Rothschild:

Yes, Your Honor.

Felix Frankfurter:

Is not an easy case.

Edward I. Rothschild:

It’s an easy case now.

Felix Frankfurter:

Certainly, that’s the point about finality.

They are easy case so that’s — otherwise, you wouldn’t have the Court adjudication in their property or the (Inaudible) that if the case now that it wasn’t (Inaudible)

Now, if you have a situation by the cover under 54 (b),a civil case because that kind of a situation rose in accordance of multiple litigation, you will say that that’s the 54 (b).

It didn’t touch the problem that you dealt (Inaudible)

Edward I. Rothschild:

And clearly not appealable.

Felix Frankfurter:

Pardon me?

Edward I. Rothschild:

Clearly not appealable, not without — if the 54 (b) stamp is put on the Cobbledick order and it comes to this Court again, it is clearly not appealable.

Is that responsive here?

Felix Frankfurter:

(Inaudible)

Edward I. Rothschild:

Because that order is not final within the 1291 standard, it’s entirely preliminary to figure.

Felix Frankfurter:

Well, I mean it couldn’t be made under 54 (b).

Edward I. Rothschild:

I say if a — if a 54 (b) stamps was put on it.

Felix Frankfurter:

Would make any difference at all.

Edward I. Rothschild:

— would make any difference —

Felix Frankfurter:

I think of the other cases that’s (Inaudible)

Edward I. Rothschild:

I’m not certainly —

Felix Frankfurter:

(Inaudible) whether in detachment for — for both or the reason to offer and the question (Inaudible) the lifting of the attachment was an appealable case, the Court says this is part of our terms which as the applicability — appealability to come (Inaudible)

Edward I. Rothschild:

That is our view.

Felix Frankfurter:

— or the early case, in early case where determination was made as to who owns that proposition.

(Inaudible)

Edward I. Rothschild:

No change.

Felix Frankfurter:

No change.

Edward I. Rothschild:

Yes, Your Honor.

Felix Frankfurter:

Well, it lets you say what is (Inaudible) content of finality is rather (Inaudible)

Edward I. Rothschild:

That is correct, Your Honor.

Felix Frankfurter:

Stand on that flat form on any (Inaudible)

Edward I. Rothschild:

Yes, Your Honor.

I —

Felix Frankfurter:

All right.

Edward I. Rothschild:

I not only agree with it, I think I have to agree with it.

Felix Frankfurter:

The real power would be — would be (Inaudible) once the — once the credential was satisfied.

Edward I. Rothschild:

That’s correct, my real quarrel with the petitioner is that we have so clearly a final order that we shouldn’t be mocking around in this Court on amended Rule 54 (b).

Now, I’m perfectly willing to discuss any aspect with the affirmative view but I don’t think we needed it.

Felix Frankfurter:

(Inaudible) testified both — further argument.

Edward I. Rothschild:

I also want to state that in our view, I may have said or alluded to this obliquely, I would like to state that in our view, the Court of Appeal, perhaps, somewhat unknowingly applied this same test that I’m urging to this Court.

That is to say, including the Bendix opinion at page 45 of the record, the Court recognizes that this necessity for multiple claims to be found for final judgment on the particular claim and for the correct exercise of discretion.

Now, I say and urge this Court to state clearly for the benefit of — of those of us who come again on these problems that that is the correct test that ought to be applied in these 54 (b) cases.

And I also urged the Court not to take the invitation proper to it by petitioner to send this case back to determine whether the Court of — to ask the Court of Appeals to take another look at it on the test which this Court enunciates before the Court of Appeals.

There’s nothing going to change in the Court of Appeals.

We have the complaint, the District Court order, the motion to dismiss the appeal, and it presents solely a procedural question and this Court’s rule, there are no local law questions or fact questions which the Court of Appeals can help you on and I might say from the fact that there are or have been very few 54 (b) cases since these cases were docketed.

The Courts of Appeals are awaiting your decision to help them in this 54 (b) area and you — it seems to ask that you ought to.

I do not do more than allude to the fact that we have been seriously prejudiced by the long delay that has come already and that would seem to us that there’d be no reason to postpone that ultimate determination of this any further so that we could get the trial as promptly as possible on this case that should have been on now for almost three years which may seem a short time in relation to the case that follows.

But so far as we are concerned, it’s a very long time and we’re still a long way from home.

In our view, the affirmative — the — the order of the District Court was clearly appealable under preamendment rule.

It’s clearly appealable under preamendment rule.

Edward I. Rothschild:

It’s clearly appealable under the amended rule without regard to what view you take of the amended rule.

You can take the negative view, the affirmative view, Judge Clark’s view, Professor Morris view, Judge Hastie’s view, the Gold Seal’s view or my view or any other view you can think of and I’m still appealable.

Thank you.