Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
Plaintiffs are bondholders of the Alton Railroad Company, which has recently gone through reorganization pursuant to § 77 of the Bankruptcy Act, 11 U.S.C. § 205. In that reorganization plaintiffs received only 37.5 per cent of the face amount of their claims, and their old bond certificates were cancelled "except for purpose of evidencing right of the bearer or registered owner to a claim, if any, against the Baltimore and Ohio Railroad Company." It is this claim which the plaintiffs are now attempting to enforce as unsatisfied creditors. The defendant dominated the debtor corporation through ownership and control of all of its voting stock from 1931 until 1942 and is alleged to have used its position to divert potential profits from the debtor to itself. The defense of the statute of limitations was successfully interposed in the district court, Judge Murphy ruling that all claims accruing before May 7, 1942, were barred by the applicable New York statutes. D.C.S.D.N.Y., 123 F.Supp. 44. On the appeal on the merits plaintiffs intend to contest the appropriateness of this cutoff date which bars the greatest part of their claims. At this juncture, however, we are concerned only with a motion by the defendant to dismiss the appeal for lack of an appealable order below, despite an express determination that there was no just reason for delay and direction for entry of judgment pursuant to F.R. 54(b).
Defendant argues vigorously that in no event can there be an appealable judgment here, because there has been adjudicated only a part of a unitary action by bondholders to recover deficiencies on their bonds. Even under F.R. 54(b), as is now settled, an entire claim must be adjudicated and appeals cannot be taken from an order upon a part of a single claim. See Leonidakis v. International Telecoin Corp., 2 Cir., 208 F.2d 934; Gold Seal Co. v. Weeks, 93 U.S.App.D.C. 249, 209 F.2d 802; Pabellon v. Grace Line, Inc., 2 Cir., 191 F.2d 169, 174, certiorari denied Coston Supply Co. v. Pabellon, 342 U.S. 893, 72 S. Ct. 201, 96 L. Ed. 669; United States Plywood Corp. v. Hudson Lumber Co., 2 Cir., 210 F.2d 462. So an action to enforce a series of overdue interest payments on matured bonds would not state multiple claims merely because more than one payment is owed. The ultimate determination of multiplicity of claims must rest in every case on whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced. See United Artists Corp. v. Masterpiece Productions, 2 Cir., 221 F.2d 213. Here the plaintiffs alleged a series of independent acts of wrongdoing by the defendant, some of which occurred in their entirety before the cutoff date fixed by the district court. These include the alleged misuse of Alton's rolling stock, the wrongful abrogation of contracts favorable to Alton, and the misappropriation of Alton's tax credits for the benefit of the defendant. Far from being merely an action by a bond-obligee on his bond, it is actually that of a corporation's judgment creditors who are suing in the right of the corporation to seek redress for a series of torts alleged to have been committed by the defendant against their debtor. This seems to us clearly a case of multiple claims, where Judge Murphy could enter final judgment upon making the appropriate determination.
Defendant also points out that Judge Murphy appears to have expressed a possible doubt as to the validity of the rule and that this issue is now before the Supreme Court by grant of certiorari in the case of Mackey v. Sears, Roebuck & Co., 7 Cir., 218 F.2d 295, which sustained the rule. See Sears, Roebuck & Co. v. Mackey, 348 U.S. 970, 75 S. Ct. 535. Although we have recently reiterated belief in the rule's validity, see, e.g., United Artists Corp. v. Masterpiece Productions, supra, 2 Cir., 221 F.2d 213, and Rao v. Port of New York Authority, 2 Cir., 222 F.2d 362, it seems desirable to make some re-examination of the question here. The substantial importance of the problem, the far-reaching consequences of an adverse holding, the lack of official defenders of the rule - unlike an Act of Congress, which is supported by the Attorney General under 28 U.S.C. § 2403 - and the normal interest of counsel in their own case, rather than in the rules as such, all suggest the desirability of adducing here such reasons in favor of validity as have seemed persuasive upon a careful study of the matter.
The argument against validity is simple - indeed quite delusively so. Starting with the principle that mere procedural rules cannot expand a court's jurisdiction, it is then assumed that the assailed judgment was not appealable before the advent of the rules; and the inevitable conclusion then seems to be that the judgment cannot now be made appealable by rule, and particularly by action of the trial judge. But this statement conceals the extent of the assumption made as to the former law and negates the change in law necessarily made (with express authority of Congress) by the advent of the federal rules as a new system of procedure in our courts. For our problem arises because of the merger of law and equity, supplemented by the correlative rules achieving an extremely broad content for the civil action. Hence how can it be patly assumed that an assailed judgment was not appealable before the rules when the then practice did not contemplate such a judgment combining law and equity and other remedies?
The general aspects of these broader questions were indeed contemplated by David Dudley Field and his associates in planning the original law-equity merger in New York in 1848. In the First Report of the Commissioners on Practice and Pleadings 74, 76, 77 (N.Y.1848), the Commissioners recognized three principal difficulties in achieving a uniform procedure in cases theretofore cognizable at law and equity; and of these they stated the form of the judgment and the means of enforcing it as first. (The others were the mode of pleading and the mode of trial.) As they pointed out, chancery granted specific relief to such of the parties as were so entitled, while the law actions gave substitutionary relief by way of money damages, which, in the case of setoffs, would remain only a balance due after deduction of the setoffs. And so the plasticity of the practice in equity might permit of a "split" judgment or decree awarding varied relief to differing parties. And here, as elsewhere, the Commissioners intended to make the more plastic processes of equity available for the new and combined action. See in general Kharas, A Century of Law-Equity Merger in New York, 1 Syracuse L. Rev. 186, 187-189 (1949); Millar, Civil Procedure of the Trial Court in Historical Perspective 356-361 (1952). And this, too, is just what was planned and done in the original F.R. 54(b), which was soon sustained not only by us, Collins v. Metro-Goldwyn Pictures Corp., 2 Cir., 106 F.2d 83, but by the Supreme Court in Reeves v. Beardall, 316 U.S. 283, 62 S. Ct. 1085, 86 L. Ed. 1478.
Before we turn to what seems to us the decisive significance of Reeves v. Beardall, it is desirable to note somewhat further the background of the rule. For the problem of the effect of district court rules upon appellate procedure early concerned the Advisory Committee, which gave the most careful attention to it. While the Committee did not plan a revision of appellate procedure as such, yet so much of it depended on district court activity that various incidental appellate practices were necessarily affected. So after intensive study the Committee decided that the Supreme Court under general and historic powers, as well as the specific enabling act, here had the authority to act, although it made the problem clear to the Court in its final Report; and the Court's adoption of the rule after such careful appraisal has been widely considered as approval of the Committee's conclusion as to its validity. This background is set forth, with citations, in Lopinsky v. Hertz Drive-Ur-Self Systems, 2 Cir., 194 F.2d 422, 425-427.The rule here under consideration has independent significance as an expression of finality of court action and only affects appealability and the appellate court's jurisdiction through the operation of a statute based on finality and subject to change as Congress wishes; indeed that body has before it now a proposal of the Judicial Conference which would adapt the plan of the present F.R. 54(b) quite broadly to all federal appeals. See Rep. of the Jud.Conf. of the U.S. 27 (Sept.1953); Baltimore Contractors v. Bodinger, 348 U.S. 176, 181 note 8, 75 S. Ct. 249, 252.
As a matter of fact, others of the rules - which have been uniformly sustained - affect appellate jurisdiction even more directly than does this, e.g., the rule materially shortening the time for appeal and the extensive provisions suspending the time upon the filing of any one of several listed motions. See cases cited in Lopinsky v. Hertz-Drive-Ur-Self Systems, supra, 2 Cir., 194 F.2d 422, 428, notes 13, 14, and 15. A close analogy in both retionale and result is that most cited of all the rules, never questioned so far as appears and now extended by judicial decision to admiralty, F.R. 52(a), providing that findings of fact shall not be set aside unless "clearly erroneous." See McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6. For this was a definite adoption of the equity rule of review and rejection of the law review; the adoption of a single form of review was considered essential to the easy operation of the union of law and equity. See Advisory Committee's Note to F.R. 52(a). A view that the rule-making authority lacked power to make the review uniform between law and equity would have seriously impeded or prevented the merger of law and equity authorized in the rulemaking statute (the former 28 U.S.C. § 723c, 48 Stat. 1064), as the experience in some states has indicated. Clark & Stone, Review of Findings of Fact, 4 U. of Chi.L.Rev. 190 (1937); Clark, Code Pleading 111, 112 (2d Ed.1947). And, as the federal cases show, the adoption of this uniform rule has greatly assisted in making the federal merger so unobtrusively operable.
When, therefore, the split judgment of equity was incorporated into original F.R. 54(b), it was necessary to fit this rule into the framework of finality required by the statute, 28 U.S.C. § 1291. For this the earlier cases - not altogether clear at best*fn1 - cannot afford an automatic and infallible guide. The situation is one fairly to be developed by analogy - an important and a fertilizing part of the judicial process. What was done - and properly so - is rather well described by a critic (in part) of this rule, Judge Hastie, who, concurring in the result in Bendix Aviation Corp. v. Glass, 3 Cir., 195 F.2d 267, 280, 38 A.L.R.2d 356, describes the holding in Reeves v. Beardall, thus: "Rather, in a situation which it had not considered before, the Supreme Court applied a conception of an appealable unit of litigation which was consistent both with the rationale of its earlier decisions construing Section 1291 and with the Rules newly enacted in connection with the liberalization of joinder." A similar thought is expressed by Mr. Justice Jackson in Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 512, 70 S. Ct. 322, 324, 94 L. Ed. 299, thus: "The liberalization of our practice to allow more issues and parties to be joined in one action and to expand the privilege of intervention by those not originally parties has increased the danger of hardship and denial of justice through delay if each issue must await the determination of all issues as to all parties before a final judgment can be had. In recognition of this difficulty, present Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A., was promulgated." He goes on to discuss sympathetically the obvious purpose of this amended form of the rule to reduce as far as possible the uncertainty and hazard to the litigant, but, since the amendment was not in force to control the case under consideration, held it not appropriate to attempt to determine its effect on cases of this kind "beyond observing that it may do much to prevent them from coming here."*fn2 Hence it seems not without significance that in its latest citation of the rule the Supreme Court notes, but accepts without question, an appeal from a F.R. 54(b) judgment. National City Bank of New York v. Republic of China, 348 U.S. 356, 357, 75 S. Ct. 423.*fn3
If, therefore, this judgment would have been appealable under original F.R. 54(b) and Reeves v. Beardall - as to us seems clear - it is now appealable here. For the present rule is simply a device whereby the intent of the district judge to exercise his power either to adjudicate or to postpone adjudication (the latter power he always has had) is made clearly manifest. "It provides an opportunity for litigants to obtain from the District Court a clear statement of what that court is intending with reference to finality, and if such a direction is denied, the litigant can at least protect himself accordingly." Mr. Justice Jackson in Dickinson v. Petroleum Conversion Corp., supra, 338 U.S. 507, 512, 70 S. Ct. 322, 324; see, also, General Time Corp. v. Padua Alarm Systems, 2 Cir., 199 F.2d 351, 358, 364, certiorari denied Padua Alarm Systems v. General Time Corp., 345 U.S. 917, 73 S. Ct. 728, 97 L. Ed. 1351; Republic of Italy v. De Angelis, 2 Cir., 206 F.2d 121, 132.
That the rule is fulfilling a substantial and a desirable part in federal litigation seems demonstrated by the cases. For it is operating affirmatively and negatively in a great number of cases, as the reports show; and we are cognizant of the fact, as appears from daily inspection of records on appeal, that there are substantially more cases than are expressly noted or discussed by the courts.*fn4 Indeed, it seems the exception for parties to raise the issue; and many of the cases where discussion occurs are those where the court, and not the parties, has raised the question.*fn5 And the general view of the courts and the writers is strongly in favor of the validity of the rule. In addition to the cases cited from this Circuit*fn6 and the trend toward approval in the Supreme Court cases cited above, there are extensively reasoned decisions to the same effect from four other circuits: Bendix Aviation Corp. v. Glass, supra, 3 Cir., 195 F.2d 267, 38 A.L.R.2d 356; Boston Medical Supply Co. v. Lea & Febiger, 1 Cir., 195 F.2d 853; Town of Clarksville, Va. v. United States, 4 Cir., 198 F.2d 238, certiorari denied United States v. Town of Clarksville, Va., 344 U.S. 927, 73 S. Ct. 495, 97 L. Ed. 714; Mackey v. Sears, Roebuck & Co., supra, 7 Cir., 218 F.2d 295. To this must be added the approval of writers, e.g., 6 Moore's Federal Practice P54.29 (2d Ed.1953) and Note, 62 Yale L.J. 263 (1953), as well as the direct implication of validity from a large number of other decisions which do not go into a lengthy discussion of the matter.*fn7
Of course there have been some disputes as to the interpretation of the rule, thus by implication accepting its validity. One of these concerns the question whether demands against a number of tort-feasors jointly and severally liable are multiple claims or only a single claim within the rule. See United Artists Corp. v. Masterpiece Productions, supra, 2 Cir., 221 F.2d 213, and Rao v. Port of New York Authority, supra, 2 Cir., 222 F.2d 362, holding the former, with Steiner v. 20th Century-Fox Film Corp., 9 Cir., 220 F.2d 105, contra. And there are certain dicta in other cases, such as Gold Seal Co. v. Weeks, supra, 93 U.S.App.D.C. 249, 209 F.2d 802, appearing to express some doubts not at all conclusive.*fn8 But Flegenheimer v. General Mills, 2 Cir., 191 F.2d 237, remains the sole case expressing all-out doubts as to the rule's validity when construed in accordance with its intent; that decision was an attempt to circumscribe modern judgments within the old molds without consideration of the new situation created by the adoption of the rules and, in the light of the later cases, cannot be taken as the present law of this Circuit.*fn9
Here we may note the carefully reasoned concurring opinion of Judge Hastie for himself and Judge Kalodner in Bendix Aviation Corp. v. Glass, supra, 3 Cir., 195 F.2d 267. There the majority of the Third Circuit, sitting en banc, sustained the validity of F.R. 54(b) and applied it to hold appealable the dismissal of a complaint where a compulsory counterclaim was left standing. Resting his concurrence upon the refusal of injunctive relief, Judge Hastie objected to the validity of the rule as applied by the majority. Analysis shows, however, that his conclusion is more limited than some commentators have assumed. For (as we have seen) he recognizes that the new situation created by the rules requires application of the older cases only by choice and analogy, not as precise measuring rods, and stresses, just as do our cases, that what is requisite is a final adjudication of at least a certain "quantum of litigation." This he did not find in the case then before his court, a conclusion obviously with a reasonable basis, even though we think history and modern convenience point the other way to the majority's result.*fn10 This analysis suggests ...