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United States v. Home Indemnity Co.

decided: February 11, 1977.

UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF HI-WAY ELECTRIC CO., PLAINTIFF-APPELLEE,
v.
THE HOME INDEMNITY COMPANY, AND PATHMAN CONSTRUCTION CO., DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-C-3825 - Joseph Sam Perry, Judge.

Swygert and Pell, Circuit Judges, and William J. Campbell, Senior District Judge.*fn*

Author: Campbell

CAMPBELL, Senior District Judge.

Defendants-Appellants The Home Indemnity Company (Home) and Pathman Construction Co. (Pathman) seek reversal of an order of the district court denying their motion to stay enforcement of a registered judgment and to quash a garnishment summons.

The facts are not in dispute. Plaintiff-Appellee Hi-Way Electric Co. (Hi-Way) obtained a judgment on July 21, 1975 against Home and Pathman in the United States District Court for the Eastern District of Michigan. The amount of the judgment was $48,653.04 plus interest from March 2, 1970. On September 9, 1975, pursuant to the Illinois Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat., ch. 77 § 88 et seq.) Hi-Way registered the federal court judgment in the Circuit Court of Cook County, Illinois, and caused a writ of execution and two garnishment summonses to be issued.

At the time of the registration of the federal court judgment in the Circuit Court of Cook County, there was pending in that court a prior but unrelated action by Pathman, one of the federal judgment debtors, against Hi-Way, the federal judgment creditor, for breach of a construction subcontract. In response to Hi-Way's state court petition, Pathman and Home*fn1 pleaded, as a set-off and counterclaim, the pending action against Hi-Way for breach of contract. Thereafter, upon motion of Pathman and Home, the Illinois court stayed the enforcement of the registered federal judgment, pending an adjudication of the set-off and counterclaim. On November 4, 1975, that court denied Hi-Way's motion to strike the answer, set-off and counterclaim, and ordered that the cases be consolidated.

On November 10, 1975, Hi-Way registered the federal court judgment in the United States District Court for the Northern District of Illinois pursuant to 28 USC § 1963. Under Rule 62 (f) of the Federal Rules of Civil Procedure, Pathman and Home moved the district court for an order staying the enforcement of the registered judgment and quashing the garnishment summons. On February 17, 1976, the district court entered an order denying that motion. We reverse.

The threshold inquiry, raised by Hi-Way's motion to dismiss the appeal, is whether the district court's order denying the motion for a stay of enforcement of the judgment is an appealable final order under 28 USC § 1291. Rulings by trial courts on post-judgment motions to quash a writ of execution, Loeber v. Schroeder, 149 U.S. 580, 37 L. Ed. 856, 13 S. Ct. 934 (1893), Steccone v. Morse-Starrett Co., 191 F.2d 197 (9th Cir. 1951), United States v. Stangland, 270 F.2d 893 (7th Cir. 1959); to vacate the entry of judgment, Glinski v. United States, 93 F.2d 418 (7th Cir. 1937); or to require the clerk to record satisfaction of a judgment, Hatzenbuhler v. Talbot, 132 F.2d 192 (7th Cir. 1943), have been held not to be appealable orders on the basis that such orders do not finally dispose of an entire controversy between the parties, and hence are not final orders within the meaning of the Judicial Code.

In general, only final decisions of the district courts are appealable. 28 USC § 1291. However, it is clear that this rule of finality is subject to both statutory*fn2 and judicially created exceptions. In Cohen v. Beneficial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), the Supreme Court created an exception to the finality requirement of 28 USC § 1291, commonly referred to as the collateral order doctrine. In holding appealable a pre-trial order of a district court denying a motion to require that security be posted to cover costs, the Court stated:

"This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The Court has long given this provision of the statute this practical rather than a technical construction. Bank of Columbia v. Sweeney, 26 U.S. (1 Pet.) 567, 569, 7 L. Ed. 265 (1828); United States v. River Rouge Co., 269 U.S. 411, 415, 70 L. Ed. 339, 46 S. Ct. 144; Cobbledick v. United States, 309 U.S. 323, 328, 84 L. Ed. 783, 60 S. Ct. 540.

We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it." 337 U.S. at 546-547.

In the instant case, Pathman and Home claimed a right under Rule 62 (f) of the Federal Rules of Civil Procedure to stay the enforcement of Hi-Way's registered judgment. The question of whether or not Rule 62 (f) is applicable in a registration proceeding appears to be one of first impression in this Circuit, and might never be answered were we to hold that the denial of such a motion is not appealable.

We have considered the collateral order doctrine on a previous occasion and found it inapplicable to provide a jurisdictional basis to review an order granting a writ of attachment. Rosenfeldt v. Comprehensive Accounting Service Corporation, 514 F.2d 607 (7th Cir. 1975).*fn3 However, the order sought to be reviewed in Rosenfeldt is clearly distinguishable from the order sought to be reviewed in this appeal. In Rosenfeldt, the rights of the party subject to the writ of attachment were preserved and protected while the litigation of the main cause of action presumably proceeded to a final determination, at which time a review of all orders of the district court would have been proper. Under the circumstances of this case, however, if the order denying a claimed right to a stay of enforcement of a registered judgment is not reviewable, the claimed right is lost and will never be subject to review.

The circumstances of the instant case more closely resemble those of Carter Products, Inc. v. Eversharp, Inc., 360 F.2d 868 (7th Cir. 1966), which involved the review of a district court order denying a motion to compel a Chicago resident to answer questions at a deposition and to produce certain documents pursuant to a subpoena duces tecum. The discovery was sought in connection with the defense of a patent infringement action then pending in the United States District Court for the Southern District of California. The deposition witness was not a party to that action. On appeal, the Court concluded that the order denying the motion to compel a non-party witness to answer questions and to produce documents was a "final ...


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