Bates v. Batte Motion of Appellees to Dismiss and Brief on Motion to Dismiss

    U N ITED  STA TES C O U R T  
O F APPEALS

FOR THE FIFTH CIRCUIT

No. 13,215

GLADYS NOEL BATES and RICHARD JESS BROWN, 
Individually and on Behalf of the Negro Teachers and 
Principals in the Jackson Separate School District, Ap­
pellants,

v.
JOHN C. BATTE, President; R. M. HEDERMAN, JR., Sec­

retary; R. W. NAEF, W. R. NEWMAN, JR., and W. D. 
McCAIN, Constituting the Board of Trustees of Jack- 
son Separate School District and K. P. WALKER, Su­
perintendent of Jackson Separate Schools, Appellees.

Appeal From The United States District Court, Southern 
District of Mississippi, Jackson Division

MOTION OF APPELLEES TO DISMISS 
AND

BRIEF ON MOTION TO DISMISS

RUFUS CREEKMORE 
821 Standard Life Building 
Jackson, Missisippi 
E. W. STENNETT 
242% East Capitol Street 
Jackson, Missisippi 
Attorneys For Appellees.



U N ITED  STA TES C O U R T  
OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13,215

GLADYS NOEL BATES, ET AL
Appellants

vs.
JOHN C. BATTE, PRESIDENT, ET AL

Appellees
MOTION TO DISMISS

Now come appellees by their attorneys and would 
show and represent unto the court that it is without juris­
diction to entertain the appeal herein for the following 
reasons:

1. The appeal herein was undertaken to be perfected 
prior to the date of the entry of a final judgment in this 
cause; and said appeal is, therefore, premature.

2. No appeal has been perfected or undertaken to be 
perfected from the final judgment entered in this cause.

WHEREFORE, Appellees pray that this appeal be dis­
missed.

Attorneys for Appellees
I, Rufus Creekmore, one of the attorneys for appellee 

do hereby certify that I have this day mailed postage pre­
paid a true copy of the foregoing Motion to each of the at­
torneys of record for appellants, addressed to each of them 
at their respective mailing addresses.

This---------day of August, 1950.





U N ITED  STATES C O U R T  
OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13,215

GLADYS NOEL BATES, ET AL
Appellants

vs.
JOHN C. BATTE, PRESIDENT, ET AL

Appellees

BRIEF FOR APPELLEES 
STATEMENT OF THE FACTS

On February 22, 1950, the District Judge entered an 
opinion in this cause (R. pages 254-257), and on March 22, 
1950, a final judgment was entered (R. page 1), although 
the judgment itself does not appear in the printed transcript.

On March 20, 1950, two days before the entry of the 
judgment, appellants undertook to perfect this appeal by 
filing with the Clerk a notice of appeal (R. page 258), and 
a cost bond (R. page 259). The notice recites that the ap­
peal is taken “from the judgment of the court entered on the 
22nd day of February, 1950.”

The record fails to show that any notice of appeal was 
filed after the judgment of March 22, 1950, was entered, and 
it fails to show that any steps of any kind were undertaken 
to perfect an appeal from that judgment.



4

QUESTIONS PRESENTED

1. Should the appeal be dismissed as premature, in 
that it was undertaken to be perfected at a time when no 
final judgment had been entered in this cause.

2. Should the appeal be dismissed as untimely, in that 
the record fails to show that an appeal was perfected from 
the judgment of March 22, 1950, within 30 days after it 
was entered.

POINTS AND AUTHORITIES

I.

THE JURISDICTION OF THIS COURT IS LIMIT­
ED TO APPEALS FROM FINAL JUDGMENTS.

28 U.S.C.A., Section 1291;
Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 

93 L. Ed. 1521;
Commissioner v. Bedford, 325 U. S. 283, 89 L. Ed. 1611;
Catlin v. United States, 324 U. S. 229, 89 L. Ed. 911;
United States v. Hark, 320 U. S. 531, 88 L. Ed. 290;
Oneida Navigation Co. v. W. & S. Job Co. 252 U. S. 521, 

64 L. Ed. 697;
Collins v. Miller, 252 U. S. 364, 64 L. Ed. 616;
The Mary Eddy, 60 U. S. 199, 15 L. Ed. 624;
Dunaway v. Standard Oil Co., 178 Fed. (2d) 884 (5th 

Cir.) ;
Hunteman v. New Orleans Public Service Co., 119 Fed. 

(2d) 465 (5th Cir.) ;



5

The Fanny D. v. Southern S. S. Co., 112 Fed. (2d) 347 (5th 
Cir.) ;

United States v. Long Branch Distilling Co., 262 Fed. 768 
(5th Cir.) ;

II.

THE JURISDICTION OF THIS COURT IS LIMIT­
ED TO APPEALS PERFECTED WITHIN THIRTY 
DAYS AFTER THE ENTRY OF A FINAL JUDGMENT.

28 U.S.C.A., Section 2107;
Federal Rules of Civil Procedure, Rule 73(a) ;
Veritas Oil Corp. v. McLain, 4 Fed. (2d) 389 (5th Cir.) ;
Vaughan v. American Ins. Co., 157 Fed. (2d) 526 (5th 

Cir.) ;
The Fanny D. v. Southern S. S. Co., 112 Fed. (2d) 347 (5th 

Cir.) ;
Morrow v. Wood, 126 Fed. (2d) 1021 (5th Cir.) ;
In re: D’Arcy, 142 Fed. (2d) 313 (3rd Cir.) ;
Amsinck v. Springfield Groc. Co., 7 Fed. (2d) 855 (8th 

Cir.) ;
Williamson v. Chicago Lumber Co., 59 Fed. (2d) 918 (8th 

Cir.) ;
St. Louis Amusement Co. v. Paramount, 156 Fed. (2d) 400 

(8th Cir.) ;
St. Louis Amusement Co. v. Paramount, 158 Fed. (2d) 30 

(8th Cir.) ;
Uhl v Dalton, 151 Fed. (2d) 502, (9th Cir.) ;
Liberty Mutual Ins. Co. v. Pillsbury, 154 Fed. (2d) 559 

(9th Cir.) ;



6

III.

A JUDGMENT BECOMES FINAL ONLY WHEN 
THE SAME HAS BEEN ENTERED.

Federal Rules of Civil Procedure, Rule 54;
Federal Rules of Civil Procedure, Rule 58;
Federal Rules of Civil Procedure, Rule 79 (a) ;
The Santa Rita, 281 Fed. 760 (5th Cir.) ;
In re: D’Arcy, 142 Fed. (2d) 313 (3rd Cir.) ;
Amsinck v. Springfield Groc. Co., 7 Fed. (2d) 855 (8th 

Cir.) ;
Williamson v. Chicago Lumber Corp. 59 Fed. (2d) 918 

(8th Cir.) ;
St. Louis Amusement Co. v. Paramount, 156 Fed. (2d) 400 

(8th Cir.) ;
St. Louis Amusement Co. v. Paramount, 158 Fed. (2d) 30 

(8th Cir.) ;
Uhl v. Dalton, 151 Fed. (2d) 502 (9th Cir.).

IV.

AN OPINION OF THE COURT IS NOT A FINAL 
JUDGMENT.

The Santa Rita, 281 Fed. 760 (5th Cir.) ;
Commissioner v. Bedford, 325 U. S. 283, 89 L. Ed. 1611; 
United States v. Hark, 320 U. S. 531, 88 L. Ed. 290; 
Herrick v. Cutcheon, 55 Fed. 6 (1st Cir.) ;
In re: D’Arcy, 142 Fed. (2d) 313 (3rd Cir.) ;



7

Rardin v. Messick, 78 Fed. (2d) 643 (7th C ir.);
Amsinck v. Springfield Groc. Go., 7 Fed. (2d) 855 (8th 

Cir.) ;
Williamson v. Chicago Lumber Co., 59 Fed. (2d) 918 (8th 

Cir.) ;
St. Louis Amusement Co. v. Paramount, 156 Fed. (2d) 400 

(8th Cir.) ;
St. Louis Amusement Co. v. Paramount, 158 Fed. (2d) 30 

(8th Cir.) ;
Wright v. Gibson, 128 Fed. (2d) 865 (9th Cir.) ;
Peoples Bank v. Federal Reserve Bank, 149 Fed. (2d) 850 

(9th Cir.) ;
Uhl v. Dalton, 151 Fed. (2d) 502 (9th Cir.) ;
Breeding Motor Freight Lines v. Reconstruction Finance 

Corporation, 172 Fed. (2d) 416 (10th Cir.) ;

V.

THE APPEAL IS PREMATURE AND SHOULD BE 
DISMISSED.

United States v. Long Branch Distilling Co., 262 Fed. 768 
(5th Cir.) ;

Hunteman v. New Orleans Public Service Co., 110 Fed. (2d) 
465 (5th Cir.) ;

Herrick v. Cucheon, 55 Fed. 6 (1st Cir.) ;
Meeker v. Baxter, 83 Fed. (2d) 183 (2nd Cir.) ;
Studer v. Moore, 153 Fed. (2d) 902 (2nd Cir.);
McAllister v. Dick Towing Co., 175 Fed. (2d) 652 (3rd 

Cir.) ;



8

Rardin v. Messick, 78 Fed. (2d) 643 (7th Cir.) ;
Florian v. United States, 114 Fed. (2d) 990 (7th Cir.), re­

versed 312 U. S. 656, 84 L. Ed. 1105;
Amsinck v. Springfield Groc. Co. 7 Fed. (2d) 855 (8th 

Cir.) ;
St. Louis Amusement Co. v. Paramount, 156 Fed. (2d) 400 

(8th Cir.) ;
St. Louis Amusement Co. v. Paramount, 158 Fed. (2d) 30 

(8th Cir.) ;
Wright v. Gibson, 128 Fed. (2d) 865 (9th Cir.) ;
Peoples Bank v. Federal Reserve Bank, 149 Fed. (2d) 850 

(9th Cir.) ;
Uhl v. Dalton, 151 Fed. (2d) 502 (9th Cir.) ;
Breeding Motor Freight Lines v. Reconstruction Finance 

Corporation, 172 Fed. (2d) 416 (10th Cir.).

VI.

THE APPEAL WAS NOT PERFECTED WITHIN 30 
DAYS AFTER THE ENTRY OF A FINAL JUDGMENT 
AND SHOULD BE DISMISSED.

28 U.S.C.A., Section 2107;
Federal Rules of Civil Procedure, Rule 73(a) ;
Veritas Oil Corporation v. McLain, 4 Fed. (2d) 389 (5th 

Cir.) ;
Vaughan v. American Insurance Co., 15 Fed. (2d) 526 (5th 

Cir.) ;
The Fanny D. v. Southern S. S. Co., 112 Fed. (2d) 347 (5th 

Cir.) ;
Morrow v. Wood, 126 Fed. (2d) 1021 (5th Cir.).



9

STATUTES AND RULES
Section 1291 of the Judicial Code (28 U.S.C.A. Sec. 

1291) reads as follows:

“The courts of appeals shall have jurisdiction of 
appeals from all final decisions of the district courts 
of the United States, the District Court for the Terri­
tory of Alaska, the United States District Court for the 
District of the Canal Zone, and the District Court of 
the Virgin Islands, except where a direct review may 
be had in the Supreme Court.”

Rule 54 Federal Rules of Civil Procedure, reads, in 
part, as follows:

“ ‘Judgment’ as used in these rules includes a de­
cree and any order from which an appeal lies. * * * * ”

Rule 58 Federal Rules of Civil Procedure reads as fol­
lows :

“Unless the court otherwise directs and subject to 
the provisions of Rule 54(b), judgment upon the ver­
dict of a jury shall be entered forthwith by the clerk; 
but the court shall direct the appropriate judgment to 
be entered upon a special verdict or upon a general 
verdict accompanied by answers to interrogatories re­
turned by a jury pursuant to Rule 49. When the court 
directs that a party recover only money or costs or 
that all relief be denied, the clerk shall enter judgment 
forthwith upon receipt by him of the direction; but 
when the court directs entry of judgment for other 
relief, the judge shall promptly settle or approve the 
form of the judgment, and direct that it be entered by 
the clerk. The notation of a judgment in the civil 
docket as provided by Rule 79(a) constitutes the entry 
of the judgment; and the judgment is not effective be­
fore such entry. The entry of the judgment shall not 
be delayed for the taxing of costs.”



10

Rule 79(a) Federal Rules of Civil Procedure reads as 
follows:

“The clerk shall keep a book known as ‘civil doc­
ket’ of such form and style as may be prescribed by the 
Director of the Administrative office of the United 
States Courts with the approval of the Judicial Confer­
ence of the United States, and shall enter therein each 
civil action to which these rules are made applicable. 
Actions shall be assigned consecutive file numbers. 
The file number of each action shall be noted on the 
folio of the docket wherein the first entry of the action 
is made. All papers filed with the clerk, all process is­
sued and returns made thereon, all appearances, or­
ders, verdicts, and judgments shall be noted chrono­
logically in the civil docket of the folio assigned to the 
action and shall be marked with its file number. These 
notations shall be brief but shall show the nature of 
such paper filed or writ issued and the substance of 
each order or judgment of the court and of the re­
turns showing execution of process. The notation of 
an order or judgment shall show the date the notation 
is made. When in an action trial by jury has been 
properly demanded or ordered the clerk shall enter the 
word ‘jury’ on the folio assigned to that action.”
Section 2107 Judicial Code, (28 U.S.C.A. Sec. 2107) in 

part reads as follows:
“Except as otherwise provided in this section, no 

appeal shall bring any judgment, order or decree in 
an action, suit or proceeding of civil nature before a 
court of appeals for review unless notice of appeal is 
filed, within thirty days after the entry of such judg­
ment, order or decree.

“The district court, in any such action, suit or pro­
ceeding, may extend the time for appeal not exceeding



11

thirty days from the expiration of the original time 
herein prescribed, upon a showing of excusable neglect 
based on failure of a party to learn of the entry of the 
judgment, order or decree,”

Rule 73(a) and (b) reads, in part as follows:
“ (a) WHEN AND HOW TAKEN. When an ap­

peal is permitted by law from a district court to a 
court of appeals the time within which an appeal may 
be taken shall be 30 days from the entry of the judg­
ment appealed from unless a shorter time is provided 
by law, except that in any action in which the United 
States or an officer or agency thereof is a party the 
time as to all parties shall be 60 days from such entry, 
and except that upon a showing of excusable neglect 
based on a failure of a party to learn of the entry of 
the judgment the district court in any action may ex­
tend the time for appeal not exceeding 30 days from 
the expiration of the original time herein prescribed. 
The running of the time for appeal is terminated by a 
timely motion made pursuant to any of the rules herein­
after enumerated, and the full time for appeal fixed in 
this subdivision commences to run and is to be com­
puted from the entry of any of the following orders 
made upon a timely motion under such rules; granting 
or denying a motion for judgment under Rule 50(b) ; 
or granting or denying a motion under Rule 52(b) to 
amend or make additional findings of fact, whether or 
not an alteration of the judgment would be required if 
the motion is granted; or granting or denying a motion 
under Rule 59 to alter or amend the judgment; or 
denying a motion for a new trial under Rule 59.

“A party may appeal from a judgment by filing 
with the district court a notice of appeal. Failure of 
the Appellant to take any of the further steps to secure 
the review of the judgment appealed from does not af­
fect the validity of the appeal, but is ground only for



12

such remedies as are specified in this rule or, when no 
remedy is specified, for such action as the appellate 
court deems appropriate, which may include dismissal 
of the appeal. If an appeal has not been docketed, the 
parties, with the approval of the district court, may 
dismiss the appeal by stipulation filed in that court, or 
that court may dismiss the appeal upon motion and no­
tice by the appellant.

“ (b) NOTICE OF APPEAL. The notice of ap­
peal shall specify the parties taking the appeal; shall 
designate the judgment or part thereof appealed from;
and shall name the court to which the appeal is taken
* *

Rule 77(d) Federal Rules of Civil Procedure reads as 
follows:

“ (d) NOTICE OF ORDERS OR JUDGMENTS: 
Immediately upon the entry of an order or judgment 
the clerk shall serve a notice of the entry by mail in 
the manner provided for in Rule 5 upon every party 
affected thereby who is not in default for failure to 
appear, and shall make a note in the docket of the 
mailing. Such mailing is sufficient notice for all pur­
poses for which notice of the entry of an order is re­
quired by these rules; but any party may in addition 
serve a notice of such entry in the manner provided 
in Rule 5 for the service of papers. Lack of notice of 
the entry by the clerk does not affect the time of ap­
peal or relieve or authorize the court to relieve a party 
for failure to appeal within the time allowed, except as 
permitted in Rule 73(a).”

ARGUMENT
(a)

The appellate jurisdiction of this court is derived from 
Section 1291 of the Judicial Code (28 U.S.C.A., Section



13

1291), and is limited to a review of final decisions except 
as otherwise therein specified. The final judgment rule is 
sn historic characteristic of federal appellate practice. It 
has been embedded in our jurisprudence since the Judiciary 
Act of 1789; and since that date the uniform policy of Con­
gress, and of settled rules of practice and procedure has 
been to limit review to final decisions, save only for those 
interlocutory orders and decrees specifically made appeal- 
able by statute. Some of the multitude of cases announcing 
this principle are cited under Point I, supra, p. 4.

True it is that difficulty has often arisen in determi­
ning when a judgment or decree becomes final, and in de­
termining what constitutes a final judgment or decree, but 
neither difficulty arises in the present case.

The authorities uniformly hold (Point III, supra, p. 
6) that judgments become final only w h e n  they have 
been entered; and since the Federal Rules of Civil Proce­
dure became effective in 1938, the question, as it relates to 
civil suits in the district courts, has been removed from the 
field of controversy by Rule 58 which provides that “the 
judgment is not effective before such entry.”

And the authorities also uniformly hold, (Point IV, 
supra, p. 6), that an opinion of the court is not a final 
judgment or decree, even though it may make findings of 
fact, and conclusions of law, and direct the entry of a judg­
ment or decree accordingly.

In the instant case the notice of appeal was filed two 
days before any judgment was entered. The notice refers 
to “the judgment of this court entered on the 22nd day of 
February, 1950” ; but there was no such judgment, the docu­
ment thus referred to being the written opinion of the 
judge.



14

Under circumstances such as this the authorities hold 
that the appeal is premature, and the appellate court is 
without jurisdiction to entertain it. (Point V., supra, p. 7).

St. Louis Amusement Co. v. Paramount Film Distribu­
ting Corporation, 156 Fed. (2d) 400 (8th Cir. 1946) is di­
rectly in point. In that case the District judge, after hear­
ing the cause filed with the clerk a written opinion in which 
he set forth the issues involved and the conclusions reached; 
this opinion concluding with the words: “The motions of 
defendants to dismiss and for summary judgment are sus­
tained.” No formal judgment was entered, but an appeal 
was taken from this opinion; counsel relying upon it as a 
final judgment. But the Circuit Court held that it had no 
jurisdiction of the appeal, and in so holding said:

“Rule 79(a) of the Federal Rules of Civil Proce­
dure, 28 U.S.C.A. following sections 723c, requires the 
Clerk to keep a ‘civil docket’ and to enter therein 
chronologically brief notations of each order or judg­
ment. Rule 58 of the Rules provides in part: ‘The no­
tation of a judgment in the civil docket as provided by 
Rule 79(a) constitutes the entry of the judgment; and 
the judgment is not effective before such entry.’

“In view of Rule 58, we are constrained to hold 
that the mere filing of the judge’s opinion in this case 
which is shown by the transcript of the record before 
us, does not establish that a final judgment has been 
entered which has been made effective in the manner 
prescribed by the Rules and which is reviewable in this 
court. If no judgment has been docketed, there is no 
judgment from which to appeal and the appeal is pre­
mature. We are in accord with the statement of the 
law by the Third Circuit Court of Appeals in In re 
D’arcy, 142 F. 2d 316, as follows: ‘In the federal courts 
an opinion is not a part of the record proper. England 
v. Gebhardt, 1884, 112 U. S. 502, 506, 5 S. Ct. 287, 25



15

L. Ed. 811. Consequently a statement in an opinion of 
the conclusion reached by the court, even though couch­
ed in mandatory terms, cannot serve as the order or 
judgment of the court. It is necessary that a defin­
itive order or judgment be made and entered in the 
court’s docket in due form. In Allegheny Company v. 
Maryland Casualty Co., 3 Cir., 1943, 132 F. 2d 894, 
897, certiorari denied 318 U. S. 787, 63 S. Ct. 981, 87 
L. ed. 1154, was pointed out the vital importance of a 
court’s judgment being clear and unambiguous. For 
similar reasons Civil Procedure Rule 79(a), 28 U.S. 
C.A. following section 723c, requires that all orders 
and judgments of the District Court in civil actions 
shall be noted in the docket on the folio assigned to the 
action and Rule 58 provides that the notation of a 
judgment in the docket as provided by Rule 79 (a) shall 
constitute the entry of the judgment and that the judg­
ment shall not be effective before such entry.’ Also see 
United States v. Hark, 320 U. S. 531, 64 S. Ct. 359, 88 
L. Ed. 290; Uhl v. Dalton, 9 Cir. 151 F. (2d) 502

“This appeal is dismissed as prematurely taken.”
Our own fifth circuit has uniformly dismissed as be­

ing premature, appeals taken from judgments which are 
not final. United States v. Long Branch Distilling Co. 262 
Fed. 768; Hunteman v. New Orleans Public Service, Inc., 
119 F. (2d) 465; Dunnaway v. Standard Oil Co., 178 F. 
(2d) 884.

In the instant case the appeal is from the court’s opin­
ion, which is not a final judgment; and the same should be 
dismissed as prematurely taken.

(b)
Rule 73(a) Federal Rules of Civil Procedure and Sec­

tion 2107 of the Judicial Code (28 U.S.C.A., Section 2107) 
provide that no appeal, except as otherwise expressly pro-



16

vided, shall bring any judgment before a court of appeals 
for review “unless notice of appeal is filed within thirty 
days after the entry of such judgment.”

The transcript in the present case fails to show that 
any notice of appeal was filed with the Clerk of the Dis­
trict Court after the judgment of March 22, 1950, was en­
tered ; and under the authorities cited under Points Num­
bered II and VI, supra, pp. 5, 8) this court has no jurisdic­
tion to entertain the appeal.

“Extended discussion of the law is unnecessary, 
as it is well settled that statutes limiting the time in 
which appeals and writs of error may be brought are 
mandatory and jurisdictional. The statute begins to 
run from the date of the judgment, and the time cannot 
be extended by waiver, by agreement of the parties, nor 
by order of the court.” Vaughan v. American Ins. Co., 
15 Fed. (2d) 526 (5th Cir. 1926).

CONCLUSION

For the reasons herein set forth we respectfully submit 
that this appeal should be dismissed.

Respectfully submitted,

Attorneys for Appellees
I, Rufus Creekmore, one of the attorneys for appellees 

in the above styled cause, hereby certify that I have this day 
mailed postage prepaid a true copy of the foregoing brief 
to each of the attorneys of record for the appellants at their 
respective post office addresses.

This______day of August, 1950.