310 F2d 126 Atterbury v. A S V Carpenter

310 F.2d 126

H. E. ATTERBURY, Appellant,
A. S. V. CARPENTER, Appellee.

No. 17753.

United States Court of Appeals Ninth Circuit.

November 16, 1962.

Duncan, Brophy, Wilson & Duhaime, and Robert B. Duncan, Medford, Or., for appellant.

Roberts, Kellington, Branchfield & Heffernan, G. W. Kellington and George M. Roberts, Medford, Or., for appellee.

Before ORR, JERTBERG and MERRILL, Circuit Judges.


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In this action involving multiple parties certain issues were segregated and separately tried resulting in judgment in favor of Appellee Carpenter. This appeal was taken from such judgment.


It does not appear, however, that there has been compliance with Rule 54(b), F.R.Civ.P., and for that reason this appeal must be dismissed.


We repeat what we said in Miles v. City of Chandler, 9 Cir., 1961, 297 F.2d 690, 691:


"If, after our mandate goes down, the District Court sees fit to make the express determination and to give the express direction mentioned in Rule 54(b) and to enter judgment in conformity therewith, and if appellant appeals from such judgment, it will not be necessary for the parties to reprint their briefs or the present record on appeal. Such appeal, if taken, can be heard upon the present briefs and the present record, supplemented by a record of proceedings had in District Court after receipt of our mandate. However, we are not to be understood as suggesting that the District Court should or should not make the express determination or give the express direction mentioned in Rule 54(b), these being matters exclusively within the District Court's discretion."


Appeal dismissed.