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    Johann Maria Farina Gegenuber Dem Neumarkt v. Roger & Gallet, 296 F.2d 119, 2d Cir. (1961)

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    The court dismisses the appeal as premature because there was no final judgment from which to appeal. The district court's order dismissing the complaint unless the plaintiff produced a witness for deposition within 90 days was a conditional order, not a final judgment. For there to be a final judgment, it must be entered on the civil docket. As no such judgment was entered here, the time for appeal was not triggered. The court notes that district judges should explicitly state when a conditional order is made that a judgment of dismissal will be entered if the condition is not met to avoid confusion over when the appeal period begins.

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    Johann Maria Farina Gegenuber Dem Neumarkt v. Roger & Gallet, 296 F.2d 119, 2d Cir. (1961)

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    The court dismisses the appeal as premature because there was no final judgment from which to appeal. The district court's order dismissing the complaint unless the plaintiff produced a witness for deposition within 90 days was a conditional order, not a final judgment. For there to be a final judgment, it must be entered on the civil docket. As no such judgment was entered here, the time for appeal was not triggered. The court notes that district judges should explicitly state when a conditional order is made that a judgment of dismissal will be entered if the condition is not met to avoid confusion over when the appeal period begins.

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    Filed: 1961-11-15 Precedential Status: Precedential Citations: 296 F.2d 119 Docket: 27185_1

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    The court dismisses the appeal as premature because there was no final judgment from which to appeal. The district court's order dismissing the complaint unless the plaintiff produced a witness for deposition within 90 days was a conditional order, not a final judgment. For there to be a final judgment, it must be entered on the civil docket. As no such judgment was entered here, the time for appeal was not triggered. The court notes that district judges should explicitly state when a conditional order is made that a judgment of dismissal will be entered if the condition is not met to avoid confusion over when the appeal period begins.

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    84 views2 pages

    Johann Maria Farina Gegenuber Dem Neumarkt v. Roger & Gallet, 296 F.2d 119, 2d Cir. (1961)

    Uploaded by

    Scribd Government Docs
    The court dismisses the appeal as premature because there was no final judgment from which to appeal. The district court's order dismissing the complaint unless the plaintiff produced a witness for deposition within 90 days was a conditional order, not a final judgment. For there to be a final judgment, it must be entered on the civil docket. As no such judgment was entered here, the time for appeal was not triggered. The court notes that district judges should explicitly state when a conditional order is made that a judgment of dismissal will be entered if the condition is not met to avoid confusion over when the appeal period begins.

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    of 2

    296 F.

    2d 119

    JOHANN MARIA FARINA GEGENUBER DEM


    NEUMARKT, Appellant,
    v.
    ROGER & GALLET, Appellee.
    No. 27185.

    United States Court of Appeals Second Circuit.


    Argued Oct. 30, 1961.
    Decided Nov. 15, 1961.

    Edmund M. Squire, New York City, for appellant.


    William A. Moore, of Choate, Reynolds, Huntington & Hollister, New
    York City, for appellee.
    Before CLARK, FRIENDLY, and MARSHALL, Circuit Judges.
    PER CURIAM.

    In this trade-mark action defendant-appellee gave notice of an examination


    before trial of plaintiff's managing partner, Johann Maria Farina, of Cologne,
    Germany. Plaintiff moved to vacate on the ground of hardship; but the court
    denied the motion without opinion and ordered the complaint dismissed unless
    Farina were produced for examination here within 90 days.1 Plaintiff did not
    comply, but filed notice of appeal just as the period set expired.2 Defendant has
    moved to dismiss the appeal on the ground that the notice is untimely as not
    being filed within the 30 days from the entry of judgment allowed by F.R.
    73(a). We grant the motion to dismiss on the ground that there is no final
    judgment from which an appeal can be taken; the notice is thus premature,
    rather than too late.

    It is wholly clear under the authorities and in reason that the order was
    conditional and not final when entered. See, e.g., Jung v. K. & D. Mining Co.,
    356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806; Oppenheimer v. F. J. Young & Co.,
    2 Cir., 144 F.2d 387; Cory Bros. & Co. v. United States, 2 Cir., 47 F.2d 607;
    Western Electric Co. v. Pacent Reproducer Corp., 2 Cir., 37 F.2d 14; United

    States v. Associated Air Transport, Inc., 5 Cir., 256 F.2d 857, 861, and cases
    cited n. 6. Nor could the later nonfulfillment of the condition itself supply the
    lack, since the time for appeal dates only from the entry of a judgment, which
    to become effective must be noted in the civil docket. F.R. 58, 73(a). In the
    absence here of such judgment and notation there is nothing from which an
    appeal lies. This conclusion, implicit in the other cases cited, is made quite
    clear by Jung v. K. & D. Mining Co., supra, in the significant grounds taken for
    its reversal of Jung v. K. & D. Mining Co., 7 Cir., 246 F.2d 281, which had set
    forth views to the contrary.
    3

    In the Jung case, 356 U.S. 335, 337, 78 S.Ct. 764, 766, 2 L.Ed.2d 806, the
    Supreme Court speaks of 'the hazards of confusion or misunderstanding as to
    the time for appeal' occasioned by such conditional orders. District judges may
    avoid these difficulties by explicitly stating in any such order when made that a
    judgment of dismissal will be entered upon nonperformance of the stated
    condition.

    Appeal dismissed.

    The court's order, dated June 7, and filed June 14, 1961, provided, after certain
    recitals, that plaintiff's motion be 'in all respects denied' and then continued:
    'Ordered, that the complaint herein be and the same hereby is dismissed unless
    the said Johann Maria Farina be produced by plaintiff for examination by
    defendant's attorneys at Room 1800, 44 Wall Street, New York, New York
    within 90 days of the date hereof, upon reasonable notice to defendant's
    attorneys.'

    The plaintiff's appeal was taken on September 6, 1961, from the order 'dated
    June 7, 1961, conditionally dismissing the complaint herein and which, by its
    own terms, became effective 90 days from the date thereof, viz. on September
    6, 1961.'

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