FIRSTIER MTGE. CO. v. INVESTORS MTGE. INS. CO.

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Argument of Jack S. Dawson

Chief Justice Rehnquist: We'll hear argument now on No. 89-1063, FirsTier Mortgage Company v. Investors Mortgage Insurance Company.

Mr. Dawson, you may proceed whenever you're ready.

Mr. Dawson: Mr. Chief Justice, and may it please the Court:

My client sued the insurance company over eight policies of private mortgage insurance.

They filed a motion for summary judgment which was set for oral argument after a lot of briefing.

If you had been in the courtroom on January the 26th, 1989, you would have heard Judge Bohanon say, these policies should be and are cancelled.

He said these policies are void, and then he turned to me and Ms. Dansby and said, the losing party has a right to appeal.

I don't think you'll get anywhere, but you may appeal my decision.

And so Ms. Dansby and I went back to the office and looked at rule 4(a)(2).

Unknown Speaker: There was more in that colloquy, wasn't there?

Mr. Dawson: Yes, Your Honor.

Unknown Speaker: Than what you've just--

Mr. Dawson: And I'll... and I will get to that in just a minute.

Unknown Speaker: --Okay.

Mr. Dawson: Well, I'll get to it right now.

He said then... back to Mr. Gray, who represented the defendant... I would like for you to prepare suggested findings of fact and conclusion of law and I want you to point out for me the evidence that you rely on and where I can find it in the record.

And he gave him 10 days to do that and then said, and give your opposing counsel a copy of that and then, Mr. Dawson, if you find any of those are in error, you may point that out to me, also.

Unknown Speaker: This was on a motion for a summary judgment, wasn't it?

Mr. Dawson: Yes, Your Honor.

Unknown Speaker: Does the district court ordinarily make findings of fact and conclusions of law in a motion for summary judgment?

Mr. Dawson: They don't have to, of course, under rule 56.

They don't have to at all.

And I--

Unknown Speaker: I'd always thought of findings of fact as being something you have at the end of a bench trial where there are contested facts.

Mr. Dawson: --Yes, sir, and then I think the court it required to under the rule.

But I think under a motion for summary judgement because we, the lawyers, are supposed to set out in our briefs what the facts are, that it's... I can't tell you what's ordinarily done.

I'd say 50-50, something like that.

But anyway, it's not a requirement.

We went in... went back, we filed our notice of appeal and we said very specifically, we're appealing from the announcement of a decision.

We said the judgment has not been entered and we said we're relying on 4(a)(2) and so we thought we knew what we were doing.

We studied this and did this on purpose.

Then we get the letter from the circuit court that said, please brief the issue of whether we had jurisdiction because... excuse me... Judge Bohanon was considering findings of fact and conclusions of law.

We--

Unknown Speaker: You don't think you would have been at any risk if you had delayed filing your notice of appeal until after the formal entry of judgment, do you?

Mr. Dawson: --The only risk that I see as a trial lawyer is the risk of misdocketing, the risk of mailing it late, the risk of running up a deadline.

You... when you're trying these lawsuits, and you'll occasionally lose some of them, you need to appeal, you wake up at night and you think, oh, have I filed a motion.

You never wake up at night thinking I filed it too early.

You're... you know, you're always worried about getting it on file or is it docketed right or is the mail going to run.

So, that's the decision.

There's also another reason for getting these in early if... it's like playing football.

Once you lose one game or win one game, you want to focus on the next game as soon as possible.

And that's the way Ms. Dansby and I looked at it.

When we came back from the hearing of Judge Bohanon, we had lost this case in a trial court.

Judge Bohanon, in his decision... you can read it in the appendix--

Unknown Speaker: Yes, but you certainly can mark your trial... your desk calendar to file notice of appeal later.

You don't dismiss it entirely from your mind, do you?

Mr. Dawson: --No, Your Honor, you don't.

It's constantly on your mind.

And seriously, you wake up in the middle of the night sometimes wondering, when am I supposed to file it and am I going to get it done on time.

Unknown Speaker: Well, if you mark your desk calendar, you won't wake up in the middle of the night.

Mr. Dawson: Well, I do.

And you just do.

You can take all the steps that you want to to try to get it docketed on time and you still want... you just worry until it's done.

And usually it gets done.

Usually there is no problem.

But you want to also focus on the next... the next step and so we then started to focusing on the appeal after Judge Bohanon ruled.

And in his ruling, he says, there's no doubt in my mind, there is absolutely no doubt in my mind about this case.

And he said that immediately after he said, Mr. Gray... or Mr.... he told us to help him prepare some findings of fact which would support him.

His very next sentence is, there's no doubt in my mind... there is absolutely no doubt in my mind about what I'm going to do in this case.

Unknown Speaker: That settles it.

Mr. Dawson: Well, then we get the letter from the supreme... from the court of appeals.

We brief it, and then they send us back an order which is essentially a sentence long that says, we don't have jurisdiction because the announcement was not a final decision as described by 28 U.S.C. 1291.

The announcement was not final.

Our point is... well, I guess we have really two points.

Number one, it's not supposed to be final.

There's no call for it to be final.

The rule doesn't require it to be final.

And two, in our case, if you want to... if you want to write the word "final" into the rule, this was a final decision.

It disposed of all of the issues.

It... for all of the parties.

Unknown Speaker: 1291 certainly speaks in terms of a final decision, doesn't it?

Mr. Dawson: Final decision.

Yes, Your Honor.

And I think... and Professor Moore... I agree with him and it is pointed out by opposing counsel... Professor Moore says Rule 428 talks about announcement which will result in an final decision or a final judgment.

I think--

Unknown Speaker: Well, surely, the case wasn't ready for review in a... by an appellate court based on Judge Bohanon's oral statement.

There weren't any findings of fact; there weren't any conclusions of law.

And he said that he certainly had some more things to do to make his decision reviewable.

Mr. Dawson: --Well, I think that his decision was reviewable at that time, because he didn't have to enter... he could have changed his mind and just said I'm just not going to do findings of fact and conclusions of law.

We did... we would have... everybody would want to see a journal entry entered, so you would have the 30 days start to run from that time, but even that can be waived by the parties, as the Bankers Trust case--

Unknown Speaker: Now, Mr. Dawson, you're not arguing it was reviewable at the time of the oral... every case covered by this rule is not reviewable at the time of the oral announcement, because that clearly speaks to orders that are not yet final.

Mr. Dawson: --I was only--

Unknown Speaker: They're all prejudgment and oral announcements.

Mr. Dawson: --Yes, Your Honor.

And I think that--

Unknown Speaker: That's the whole purpose of the rule.

Mr. Dawson: --That's correct.

I think that under an extreme circumstances that that ruling could have been reviewable at that time.

I don't think it's even necessary to reach that, because we didn't... I truly thought that we were going to have a journal entry of judgment.

That starts our time to run--

Unknown Speaker: But the rules doesn't say anything about journal entries.

It talks about oral announcements.

Mr. Dawson: --Yes, Your Honor.

And an oral announcement of a decision--

Unknown Speaker: And the question is whether this was an announcement within the meaning of that rule.

That's the whole issue, isn't it?

Mr. Dawson: --Yes, Your Honor.

Unknown Speaker: Now, Mr. Dawson, do you think that a rule of appellate procedure can make appealable something which 1291 does not make appealable?

Mr. Dawson: No, Your Honor.

And I'd--

Unknown Speaker: So, it would have to be a final decision before it could be appealed?

Mr. Dawson: --It would have to be an appealable decision.

Unknown Speaker: Well--

Mr. Dawson: Interlocutory or collateral.

Unknown Speaker: --Yes, yes.

Mr. Dawson: --or something like that.

Unknown Speaker: 1291, 1292.

Mr. Dawson: Yes.

Unknown Speaker: You know, the rule itself could not enlarge what's appealable.

Mr. Dawson: That's correct, Your Honor.

Unknown Speaker: No, but the rule doesn't purport to do that.

It speaks to the date at which the thing becomes appealable, which is after it becomes final and that's when the oral... that's when the notice of appeal becomes effective under the rules.

Mr. Dawson: That's correct.

At that point, the--

Unknown Speaker: So, it's perfectly clear there's no finality before the judgment was entered, no appealability.

It couldn't have been.

You couldn't change the act of Congress.

But if your notice of appeal was followed the day after it became a final, if the rule provided that's when it becomes effective, that's the end of the ball game, isn't it?

Mr. Dawson: --I'm sorry, Your Honor, I didn't follow.

Unknown Speaker: If your notice of appeal becomes effective as soon as the judgment becomes final, which is what the rule says--

Mr. Dawson: Yes, sir.

Unknown Speaker: --then, of course, you have a... then a final judgment to appeal.

Mr. Dawson: Yes, sir.

Unknown Speaker: Just what the rule says.

That's all.

Mr. Dawson: That's correct.

And that's our position is if we just... if you'll let us, the lawyers that are trying the cases and appeal them, follow the rules as they're written, and if they're enforced as they're written, then they'll be effective and it will be... make my job a lot simpler.

This Court is committed to practical, common sense construction of statutes and rules.

And if there is a... if there is any way to interpret a rule in past decisions, you've been committed to the rule that we will interpret it to save an appeal, not to facilitate its loss.

And so even if you want to... even if you have to interpret this rule, I think that that's the way it should be looked at first.

I would ask the Court to... I think we're more or less committed to using this word "final" and "finality" as it's applied to judgments and so forth.

But then to try to apply that term to oral announcements is really going to cause a lot of problems.

Wright and Milliner, talking about final judgments quoted Judge Frank in the Second Circuit 1942 and he said this term finality is a slithery, tricky word and there's not much finality to the definition of finality.

I think this Court has recognized that it's... and has called it a twilight zone, the use of the word finality is a twilight zone.

Subject to perpetual debate, a jungle of doubt... those words have been used about the word "finality".

So if you want to... that's the reason I suggested earlier that the word "appealability" is a lot easier to deal with in this context than finality is.

Unknown Speaker: I just don't understand that argument, because appealability and finality are the same thing.

Appealability is after the judgment becomes final.

All you do is postpone the effective date of the notice.

It doesn't change the date of appealability or the date of finality.

Mr. Dawson: Well, there is... there is... there are a slim bunch of cases which is called the collateral order doctrine.

If this order sounds the death knell for the case regardless of whether it's final.

Take a double jeopardy type thing--

Unknown Speaker: Yeah, but if it's a collateral order doctrine, then it's final when it's entered.

But you don't have to rely on that.

Mr. Dawson: --Well--

Unknown Speaker: As I understand your position it's just it... it doesn't become final until the judgment's entered.

But... notice of appeal is treated as if it were filed the day... the next day.

Mr. Dawson: --Yes, Your Honor.

In our simple case that we have there, that is absolutely true.

Unknown Speaker: And that's what the rule says.

Mr. Dawson: Yes, sir.

That is very simply our position, and I'll reserve the rest of my time.

Unknown Speaker: Thank you, Mr. Dawson.

Mr. Roberts, we'll hear now from you.

Justice Roberts: Mr. Chief Justice, and may it please the Court:

I would respectfully propose that this case involved two basic issues to this appeal.

The first is what is the meaning of a final judgment, under section 1291 and the second is what is the purpose and effect of rule 481 under the Federal rules of appellate procedure?

By enacting section 1291, Congress mandated that appellate... appellate jurisdiction be limited to final decisions.

This evolved into what is commonly referred to as the final judgment rule, which requires a party must ordinarily raise all claims of error in a single appeal following a final judgment along the merits.

And there's... I would propose that there's several advantages to the final judgment rule.

The first advantage would be it avoids the appellate courts' and the trial courts' looking at the same issue at the same time.

It allows... it avoids the appellate courts' interference--

Unknown Speaker: Mr. Roberts, that's not involved by your opponent's theory here.

There's no jurisdiction in the appellate court until the notice of appeal becomes effective.

Justice Roberts: --That's correct, Your Honor.

Unknown Speaker: And it doesn't become effective 'til the judgment becomes final.

Justice Roberts: That's correct, Your Honor.

And our position is the judgment became effective on March 3d at the time that the court entered its memorandum opinion and the judgment was entered.

Unknown Speaker: And also the notice of appeal became effective on that same date under the rule.

Justice Roberts: That's correct, Your Honor.

That's what the--

Unknown Speaker: Well, then how is there any danger of both courts having jurisdiction at the same time?

Justice Roberts: --Well, I was just advocating some policy arguments in favor of the single judgment rule.

If--

Unknown Speaker: But they have nothing to do with this case.

Because it was at least... I think you just agreed to that, because the only relevant date is the March 3d date.

Justice Roberts: --That's correct, Your Honor.

I might just briefly make a few statements of what the record indicates of the hearing on January the 26th, 1989.

The court did say, I find that the policy should be entered cancelled as void for one of bad faith and fraud.

However, the trial court asked IMI, the respondent, to submit proposed findings of fact and conclusions of the law, which were not required but nevertheless the court requested that.

And the trial court specifically stated on the record that it will look to what IMI submits as suggestions, as... and only suggestions only.

And the court specifically stated that it reserved the right to modify, add to, delete, and write its own findings of fact and conclusions of law and--

Unknown Speaker: Mr. Roberts, isn't that true of every case covered by this rule, that when an oral announcement is made, the judge can always change his mind?

Justice Roberts: --Absolutely.

Unknown Speaker: Well, then what case does the rule cover if it doesn't cover this case?

Justice Roberts: I can't disagree with you, Your Honor.

I... the court on March 3d, 1989 entered its memorandum of appeal--

Unknown Speaker: No, but on... earlier than that, on January 26th, it made an oral announcement, didn't it?

Justice Roberts: --Yes, it did.

Unknown Speaker: Did it make an oral announcement within the meaning of this rule?

Justice Roberts: I submit it did not.

It didn't say this was a final decision--

Unknown Speaker: But the rule doesn't require him to say it's a final decision.

Justice Roberts: --All--

Unknown Speaker: The word "final"... final doesn't appear on the rule.

Justice Roberts: --That's true.

Unknown Speaker: And what is the point of the rule, if it isn't just postpone the effective date of the notice until after the decision becomes final?

Isn't that exactly what the rule is intended to do?

Justice Roberts: Rule 4(a)(2)?

Unknown Speaker: Rule 4(a)(2), yes.

Justice Roberts: Well, there have been three... the lower courts have apparently taken three different looks at 4(a)(2).

The first was that at any time that a... that a premature appeal to a nonfinal order will be firmed up, so to speak, at the time that the court earns its final order.

Other courts have taken the position that rule 4(a)(4) is the only exception to 4(a)(2), so that... so that when you have tolling motions filed, that a new notice appeal has be filed then.

I would--

Unknown Speaker: 4(a)(4) isn't involved.

We don't have a tolling motion here--

Justice Roberts: --That's right.

Unknown Speaker: --Okay.

Justice Roberts: I would propose that the correct rule is that the announcement of a decision can only be an announcement of the final decision, and the purpose of 4(a)(2) is when you do not have either the separate document required under the rule 4(a)(6) or a delay in the court's filing on a civil docket in rule 4(a)(6).

The reason I submit that is the commentary says that rule 4(a)(2) was designed to afford civil litigants the protection afforded 4(b) under the criminal procedure.

This Court in Limpkey held that when a defendant was convicted and... sentenced, he then filed a notice of intent to appeal, and it was subsequently entered... the tradition was subsequently entered on the clerk's docket.

This Court held that that was valid appeal.

I would respectfully submit that that's the correct interpretation of--

Unknown Speaker: So you would agree... you would in effect treat the rule as though it read instead of after the announcement of a decision or order, after the announcement of a final judgment?

Justice Roberts: --The--

Unknown Speaker: But before the formal entry of the judgment it shall--

Justice Roberts: --Exactly, under rule 4(a)(6).

That's what... that's what we would propose the interpretation of rule 4(a)(2) is.

Unknown Speaker: --And I suppose you would make the argument that if that isn't what it means, it would not continue

"but before the entry of the judgment or order. "

It would say but before...

"but before the final judgment shall be treated after such final judgment. "

Justice Roberts: If I follow you, correct, Your Honor--

Unknown Speaker: If they didn't mean a final... if they didn't mean a final decision or order in the first part of 4(a)(2), they wouldn't have had to refer to entry of the judgment or order in the second part.

They could have just said final judgment in the second.

Justice Roberts: --That's the literal reading of the rule.

And it also purports--

Unknown Speaker: But even in that could any such decision or order would be really final?

If it's before the judgment is entered, the judge can always modify it, couldn't he?

Before--

Justice Roberts: --The judge can always modify it.

That's correct, Your Honor.

Unknown Speaker: --So, it would never be final.

Justice Roberts: I believe that's correct.

Unknown Speaker: Do you think that's customary for a district court, at least in your practice, in Oklahoma City, to order the making of findings of fact and conclusions of law when he decides to grant a motion for summary judgment?

Justice Roberts: I would submit it's very appropriate, for the reason is the trial court realizes that a appellate court may look at his ruling on motion for summary judgment and what findings of fact did the court rely upon in reaching its decision and what statutory case--

Unknown Speaker: But I thought our motion for summary judgment was limited to cases where there were no disputed questions of fact, that the district court... if the district court has to find the fact on any sort of conflicting evidence, then it's not appropriate for summary judgment.

Justice Roberts: --Oftentimes on summary judgment there may be an interpretation of a given set of facts, and the trial court... I would submit the trial court to protect the record might want to enter findings of fact and conclusions of law.

Unknown Speaker: Well, there may not be disputed facts but there are certainly facts on a summary judgment.

How can you decide a question of law without knowing what those facts are?

If there's a... so for everybody... what they in effect... the court's going to say to grant summary judgment is that everybody is agreed about what the facts are.

Justice Roberts: But the facts are undisputed, Your Honor.

Unknown Speaker: Yes.

Justice Roberts: And in this case the court entered I believe 23 findings of fact and 15 conclusions of law.

The findings of fact in this case were very detailed as far as what were in the insurance applications and what was relied upon, and various factual basis.

I would anticipate that the court thought that it was going up on appeal and give some guidance to the Tenth Circuit.

Unknown Speaker: But I presume everyone of those factual... it was really factual statements by the district court.

He wasn't finding on the basis of conflicting evidence, but he was just setting forth the facts that the parties agreed were facts.

Wouldn't that be the case in the motion for summary judgment?

Justice Roberts: I would submit the record reflects that he asked for findings of fact from IMI.

FirsTier proposed their findings of fact.

The court said on the record it was going to write its own judgment and its own findings of fact, which it apparently did on March 3d.

And that's what the record reflects.

I would submit that it... that the court did not... was not required to submit findings of fact on a ruling on a motion for summary judgment.

But in this case it did so.

I assume it felt it should in order to protect the record on appeal that the Tenth Circuit was going to be looking at it.

Unknown Speaker: I take the Tenth Circuit has not ruled on the pending appeal with reference to the second filing?

Justice Roberts: It has not.

The oral argument, I believe, was held in May of this year and the... it has been briefed, oral argument was held in May, and we've heard nothing from the Tenth Circuit on the subsequent appeal.

Unknown Speaker: There is the potential that if we ruled, our ruling would be moot.

Justice Roberts: There is that potential, because the Tenth Circuit could rule on merits at any time, I assume.

We've heard nothing from the Tenth Circuit with regard to that second appeal.

Well, to conclude we would... we would ask the Court to follow that interpretation with respect to rule 4(a)(2).

And if the Justices have no further questions--

Unknown Speaker: Thank you, Mr. Roberts.

Justice Roberts: --Thank you.

Unknown Speaker: Mr. Dawson, do you have rebuttal?

Mr. Dawson: Just one point on rebuttal and it kind of begs the question because I don't think that the oral announcement had to be final.

But U.S. v. Schaefer Brewing Company we learned in that that it's a find... the court should look at the actions of all the parties to see whether or not it was a final announcement.

And for that reason I--

Unknown Speaker: I don't understand what final... well, your approach to 4(a)(2) requires us to decide what is an announcement, that is, you say there can be an announcement that is not a final announcement.

Well, suppose the judge says I intend to rule this way on the matter.

Mr. Dawson: --I would not call that an announcement of a decision.

He's telling you what he intends to do.

Unknown Speaker: That's not enough.

Mr. Dawson: And I would not call that a decision.

I think you'd have to wait until he ruled.

Unknown Speaker: It has to be a current ruling?

Mr. Dawson: I think so, sir.

And--

Unknown Speaker: But not necessarily a final rule?

I mean, he says you know, I'm ruling this way.

I may change my mind before I enter it, but for the time being that's my ruling.

Is that an announcement?

Mr. Dawson: --Yes, sir.

Unknown Speaker: It is, even though he can still change his mind?

Mr. Dawson: Even he doesn't say he can change his mind--

Unknown Speaker: Yeah.

Mr. Dawson: --he can change his mind.

He can change his mind 10 days after he enters the judgment.

So in that context, it isn't final.

The final that I'm talking about is does it dispose of all the issues, does it dispose of all the parties... that type of finality.

Unknown Speaker: What if this had been a bench trial, Mr. Dawson, not a motion for summary judgment and at the close of the bench trial, the judge says... he looks at his notes and he says, I'm going to find for the plaintiff and against the defendant, and outlines very generally what he thinks the facts are.

And then he turns to the plaintiff's lawyer and says, now, plaintiffs submit findings of fact and conclusions of law.

The defendants have a certain time to object to them, et cetera.

Is... is that final under the rule within your view?

Mr. Dawson: Yes, sir.

Particularly--

Unknown Speaker: Even though findings of fact on contested issues and possible objections to them and the district court changing his mind after he sees the objection?

Mr. Dawson: --The district court can always change his mind.

That doesn't--

Unknown Speaker: Well, then... then it really doesn't sound terribly final, does it?

Mr. Dawson: --Well, because it... well, it's not final.

Even after he enters the judgment as I said earlier, he can change his mind.

In 10 days... within 10 days, sui sponte, under rule 59, he can change his mind and completely reverse himself without a motion.

And so under that concept, whether the judge can change his or her mind, it shouldn't fit into the finality formula.

The--

Unknown Speaker: But there's something still incomplete to be done there, a whole segment of a case to be finished.

Mr. Dawson: --Yes, sir.

There... well, the last segment of the case.

There are some what I would call ministerial duties.

Unknown Speaker: Well, I don't think findings of fact certainly are necessarily ministerial duties.

The judge can rule for you from the bench and yet you've given it... questions of fact and maybe the plaintiff wants one set of facts found, the defendant wants another.

And the trial judge looks back at his notes, maybe as a transcript, and he doesn't go along with the plaintiff on some of the findings of fact.

Mr. Dawson: That's correct.

I totally agree with that.

And as I said, final decision doesn't mean it can't be changed.

Final--

Unknown Speaker: Well, I thought you were... earlier you indicated you really didn't care whether... it wasn't critical whether this oral announcement was a final judgment or not.

Mr. Dawson: --I don't think it is.

Well--

Unknown Speaker: And... because you say the rule can... under the rule what you're appealing is the judgment when he enters it.

Mr. Dawson: --That's correct.

Unknown Speaker: Because the rule says the... your prior filing will be considered filed on the day the judgment is entered.

Mr. Dawson: On the day the judgment is entered and that is what you really appeal from.

And if the judgment springs from the oral announcement and is the same--

Unknown Speaker: So, you aren't appealing.

You aren't... you're really in effect... under the rule you aren't appeal his oral announcement.

You're appealing--

Mr. Dawson: --No, Your Honor.

Unknown Speaker: --his final judgment.

Mr. Dawson: Absolutely.

That's what you appeal.

You just get to file it before he actually enters the judgment and it springs to life as he files it... the judgment.

If he changes or she changes her mind before the journal entry of judgment is filed, then your appeal could be moot or you may have to file a new--

Unknown Speaker: All he has to do is say, listen, here's my bottom line.

You win; you lose.

I will tell you why later.

Mr. Dawson: --That's correct.

Unknown Speaker: Then you can file your--

Mr. Dawson: --file your notice of appeal.

Unknown Speaker: --Right then and there and wait for a year, waiting on the judge.

Mr. Dawson: Yes, sir.

And then when he or she files that journal entry, then the circuit court... it becomes effective--

Unknown Speaker: But you certainly can't say that what he has to... you have to do after his oral announcement is just ministerial, like just making up a piece of paper and filing it.

Mr. Dawson: --Well--

Unknown Speaker: It certainly isn't ministerial.

It's... he's going... you fellows are going to have to do a lot of work and the judge is going to have to do a lot of work.

He says I may revise or I may not take any of your submissions.

I may make my own.

Mr. Dawson: --Maybe ministerial was a poor choice of words.

Unknown Speaker: Well, I take it this is not the kind of case where the clerk without awaiting the direction of a court can enter judgment under rule 58, or was it?

Was it a judgment which denied all relief?

Mr. Dawson: Yes.

Yes, Your Honor, it was.

And It seems like to me that the clerk could have done that and if you look at the docket sheet--

Unknown Speaker: Acting under rule 58?

Mr. Dawson: --Yes, sir, I think that the clerk could have done that in this case.

It didn't happen.

And in our district it just doesn't happen.

The clerk just doesn't do that.

I don't know why, but they just don't.

Unknown Speaker: 58 talks about a decision.

Mr. Dawson: Yes.

But that just isn't our practice and so I really don't have any experience with that.

But under the rule it looks like that could have happened in this case.

If there's nothing further, then I'm through.

Chief Justice Rehnquist: Thank you, Mr. Dawson.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Roberts: The opinion of the Court in No. 89-1063 Firstier Mortgage Company against Investors Mortgage Insurance Company will be announced by Justice Marshall.

Argument of Justice Marshall

Mr. Marshall: This case is here on certiorari to the United States Court of Appeals for the 10th Circuit.

In the proceeding below, petitioner filed its notice of appeal prior to the District Court's entry of judgment.

This case presents the question whether the notice of appeal was timely.

In an opinion filed with the clerk today, we hold that the notice of appeal was timely and under rule 4182 the federal rules to appellant procedure.

We, therefore, reverse the judgment of the 10th Circuit.

Justice Kennedy have filed a concurring opinion.