Opinion · Court of Appeals for the Ninth Circuit

Porter v. Borden's Dairy Delivery Co.

156 F.2d 798

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1946-08-06
Topic
general

PER CURIAM. The Notice of Appeal, filed March 15, 1946, is from “the final judgment entered in this action on January 29, 1946.” On January 29 findings were filed and entered. It was not until the next day, January 30, that judgment was entered. We are of the opinion that since the notice *799of appeal is addressed to the final judgment that the mistake of a day in the designation of the date of its entry is immaterial and that the appeal is well taken, Martin v. Clarke, 7 Cir., 105 F.2d 685, 124 A.L.R. 497; Shannon v.

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PORTER v. BORDEN'S DAIRY DELIVERY CO.,156 F.2d 798(9th Cir. 1946)
PORTER, Administrator, Office of Price Administration, v. BORDEN'S DAIRY
DELIVERY CO.
No. 11354.
Circuit Court of Appeals, Ninth Circuit.
August 6, 1946.
Appeal from the District Court of the United States for the Northern District of California, Southern Division.

Action by Paul A. Porter, Administrator, Office of Price Administration, against Borden's Dairy Delivery Company, a division of Borden's a New Jersey corporation, 1325 Potrero Avenue, San Francisco, California, for damages and for an injunction. From a judgment for defendant, the plaintiff appeals. On appellee's motion to dismiss the appeal.

Motion denied.
Herbert H. Bent, Regional Litigation Atty., OPA, of San Francisco, Cal., for appellant.

Pillsbury, Madison Sutro, Eugene M. Prince, and Laurence H. Smith, all of San Francisco, Cal., for appellee.
Before DENMAN, BONE and ORR, Circuit Judges.
PER CURIAM.
The Notice of Appeal, filed March 15, 1946, is from "the final judgment entered in this action on January 29, 1946." On January 29 findings were filed and entered. It was not until the next day, January 30, that judgment was entered. We are of the opinion that since the noticePage 799of appeal is addressed to the final judgment that the mistake of a day in the designation of the date of its entry is immaterial and that the appeal is well taken. Martin v. Clarke, 7 Cir.,105 F.2d 685, 124 A.L.R. 497; Shannon v. Retail Clerks' International P. Ass'n, 7 Cir.,128 F.2d 553; and Wilson v. Southern Ry. Co., 5 Cir.,147 F.2d 165.

We also are of the opinion that the entry of the judgment reading "Filed final decree for Deft" shows the "substance of [the] judgment of the Court" as required under rule 79(a) and rule 58, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The relief sought by the complaint was for damages and an injunction against defendant and the final judgment for defendant could have but one substance, i.e., the denial of any such relief.

We are also of the opinion that in the circumstances as stated by the appellant, the failure to designate the portions of the record and the statements of points and authorities relied upon do not warrant the dismissal of the appeal.

The motion to dismiss the appeal is denied.