interpretation, and in the interest of simplicity, the traditional term, "directed verdict," is retained.

Subdivision (b). A motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence.

The amendment of the second sentence of this subdivision sets the time limit for making the motion for Judgment n.o.v. at 10 days after the entry of judgment, rather than 10 days after the reception of the verdict. Thus the time provision is made consistent with that contained in Rule 59 (b) (time for motion for new trial) and Rule 52(b) (time for motion to amend findings by the court).

Subdivision (c) deals with the situation where a party joins a motion for a new trial with his motion for Judgment n.o.v. or prays for a new trial in the alternative, and the motion for judgment n.o.v. is granted. The procedure to be followed in making rulings on the motion for the new trial, and the consequences of the rulings thereon, were partly set out in Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 253, 61 S. Ct. 189, 85 L. Ed. 147 (1940), and have been further elaborated in later cases. See Cone v. West Virginia Pulp & Paper Co. 330 U.S. 212, 67 S. Ct. 752, 91 L. Ed. 849 (1947); Globe Liquor Co., Inc. v. San Roman, 332 U.S. 571, 68 S. Ct. 246, 92 L. Ed. 177 (1948); Fountain v. Filson, 336 U.S. 681, 69 S. Ct. 754, 93 L. Ed. 971 (1949); Johnson v. New York, N.H. & H.R.R. Co., 344 U.S. 48, 73 S. Ct. 125, 97 L. Ed. 77 (1952). However, courts as well as counsel have often misunderstood the procedure, and it will be helpful to summarize the proper practice in the text of the rule. The amendments do not alter the effects of a jury verdict or the scope of appellate review.

In the situation mentioned, subdivision (c) (1) requires that the court make a "conditional" ruling on the newtrial motion, i.e., a ruling which goes on the assumption that the motion for judgment n.o.v. was erroneously granted and will be reversed or vacated; and the court is required to state its grounds for the conditional ruling. Subdivision (c) (1) then spells out the consequences of a reversal of the judgment in the light of the conditional ruling on the new-trial motion.

If the motion for new trial has been conditionally granted, and the judgment is reversed, "the new trial shall proceed unless the appellate court has otherwise ordered." The party against whom the judgment n.o.v. was entered below may, as appellant, besides seeking to overthrow that judgment, also attack the conditional grant of the new trial. And the appellate court, if it reverses the judgment n.o.v., may in an appropriate case also reverse the conditional grant of the new trial and direct that judgment be entered on the verdict. See Balley v. Slentz, 189 F. 2d 406 (10th Cir. 1951); Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F. 2d 246 (9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S. Ct. 1008, 2 L. Ed. 2d 1074 (1958); Peters v. Smith, 221 F. 2d 721 (3d Cir. 1955); Dailey v. Timmer, 292 F. 2d 824 (3d Cir. 1961), explaining Lind v. Schenley Industries, Inc., 278 F.2d 79 (3d Cir.), cert. denied. 364 U.S. 835. 81 S. Ct. 58, 5 L. Ed. 2d 60 (1960); Cox v. Pennsylvania R.R., 120 A. 2d 214 (D.C. Mun. Ct. App. 1956); 3 Barron & Holtzoff. Federal Practice and Procedure § 1302.1 at 346-47 (Wright ed. 1958); 6 Moore's Federal Practice 59.16 at 3915 n. 8a (2d ed. 1954).

If the motion for a new trial has been conditionally denied, and the judgment is reversed, "subsequent proceedings shall be in accordance with the order of the appellate court." The party in whose favor judgment n.o.v. was entered below may, as appellee, besides seeking to uphold that judgment, also urge on the appellate court that the trial court committed error in conditionally denying the new trial. The appellee may assert this error in his brief, without taking a cross-appeal. Cf. Patterson v. Pennsylvania R.R., 238 F. 2d 645, 650 (6th Cir. 1956); Hughes v. St. Louis Nat. L. Baseball Club, Inc., 359 Mo. 993, 997, 224 S.W. 2d 989, 992 (1949). If the appellate court concludes that the judgment cannot stand, but accepts the appellee's contention that there was error in the conditional denial of the new trial, it may order a new trial in lieu of directing the entry of judgment upon the verdict.

Subdivision (c) (2), which also deals with the situation where the trial court has granted the motion for judgment n.o.v., states that the verdict-winner may apply to the trial court for a new trial pursuant to Rule 59 after the judgment n.o.v. has been entered against him. In arguing to the trial court in opposition to the motion for judgment n.o.v., the verdict-winner may, and often will, contend that he is entitled, at the least, to a new trial, and the court has a range of discretion to grant a new trial or (where plaintiff won the verdict) to order a dismissal of the action without prejudice instead of granting judgment n.o.v. See Cone v. West Virginia Pulp & Paper Co., supra, 330 U.S. at 217, 218 67 S. Ct. at 755, 756, 91 L. Ed. 849. Subdivision (c) (2) is a reminder that the verdict-winner is entitled, even after entry of judgment n.o.v. against him, to move for a new trial in the usual course. If in these circumstances the motion is granted, the judgment is superseded.

In some unusual circumstances, however, the grant of the new-trial motion may be only conditional, and the judgment will not be superseded. See the situation in Tribble v. Bruin, 279 F. 2d 424 (4th Cir. 1960) (upon a verdict for plaintiff, defendant moves for and obtains judgment n.o.v.; plaintiff moves for a new trial on the ground of inadequate damages; trial court might properly have granted plaintiff's motion, conditional upon reversal of the judgment n.o.v.).

Even if the verdict-winner makes no motion for a new trial, he is entitled upon his appeal from the judgment n.o.v. not only to urge that that judgment should be reversed and judgment entered upon the verdict, but that errors were committed during the trial which at the least entitle him to a new trial.

Subdivision (d) deals with the situation where judgment has been entered on the jury verdict, the motion for judgment n.o.v. and any motion for a new trial having been denied by the trial court. The verdict-winner, as appellee, besides seeking to uphold the judgment, may urge upon the appellate court that in case the trial court is found to have erred in entering judgment on the verdict, there are grounds for granting him a new trial instead of directing the entry of judgment for his opponent. In appropriate cases the appellate court is not precluded from itself directing that a new trial be had. See Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, 69 S. Ct. 1326, 93 L. Ed. 1704 (1949). Nor is it precluded in proper cases from remanding the case for a determination by the trial court as to whether a new trial should be granted. The latter course is advisable where the grounds urged are suitable for the exercise of trial court discretion.

Subdivision (d) does not attempt a regulation of all aspects of the procedure where the motion for judgment n.o.v. and any accompanying motion for a new trial are denied, since the problems have not been fully canvassed in the decisions and the procedure is in some respects still in a formative stage. It is, however, designed to give guidance on certain important features of the practice.

CROSS REFERENCES

Grounds for new trial, see rule 59 (a). Involuntary dismissal at end of plaintiff's case, see rule 41 (b).

FEDERAL RULES OF CRIMINAL PROCEDURE Motions for directed verdict abolished in criminal cases, see rule 29 (a), Title 18, Appendix, Crimes and Criminal Procedure.

RULE 51.-INSTRUCTIONS TO JURY: OBJECTION

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly

the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

NOTES OF ADVISORY COMMITTEE ON RULES Supreme Court Rule requires exceptions to the charge of the court to the jury which shall distinctly state the several matters of law in the charge to which exception is taken. Similar provisions appear in the rules of the various Circuit Courts of Appeals.

CROSS REFERENCES

Assignment of errors unnecessary, see rule 75 (d).
Formal exceptions unnecessary, see rule 46.
Motion for directed verdict, see rule 50.

RULE 52.-FINDINGS BY THE COURT

(a) Effect.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unecessary on decisions of motions under Rules 12 or 56 of any other motion except as provided in Rule 41(b).

(b) Amendment.

Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings or has made a motion to amend them or a motion for judgment. As amended Dec. 27, 1946, effective March 19, 1948; Jan. 21, 1963, effective July 1, 1963.

NOTES OF ADVISORY COMMITTEE ON RULES See former Equity Rule 702, as amended Nov. 25, 1935 (Findings of Fact and Conclusions of Law), and U. S. C., Title 28, former § 764 (Opinion, findings, and conclusions in action against United States) which are substantially continued in this rule. The provisions of U. S. C., Title 28, former § 773 (Trial of issues of fact; by court) and former § 875 (Review in cases tried without a jury) are superseded insofar as they provide a different method of finding facts and a different method of appellate review. The rule stated in the third sentence of Subdivision (a) accords with the decisions on the scope of the review in modern federal equity practice. It is applicable to all classes of findings in cases tried without a jury whether the finding is of a fact concerning which there was conflict of testimony, or of a fact deduced or inferred from uncontradicted testimony. See Silver King Coalition Mines Co. v. Silver King Consolidated Mining

Co., 204 Fed. 166 (C. C. A. 8th, 1913), cert. den. 229 U. S. 624, 33 S. Ct. 1051, 57 L. Ed. 1356 (1913); Warren v. Keep, 155 U. S. 265, 15 S. Ct. 83, 39 L. Ed. 144 (1894); Furrer v. Ferris, 145 U. S. 132, 12 S. Ct. 821, 36 L. Ed. 649 (1892); Tilghman v. Proctor, 125 U. S. 136, 149, 8 S. Ct. 894, 31 L. Ed. 664 (1888); Kimberly v. Arms, 129 U. S. 512, 524, 9 S. Ct. 355, 32 L. Ed. 764 (1889). Compare Kaeser & Blair, Inc., v. Merchants' Ass'n, 64 F. 2d 575, 576 (C. C. A. 6th, 1933); Dunn v. Trefry, 260 Fed. 147, 148 (C. C. A. 1st, 1919).

In the following states findings of fact are required in all cases tried without a jury (waiver by the parties being permitted as indicated at the end of the listing): Arkansas, Civ. Code (Crawford, 1934) § 364; California, Code Civ. Proc. (Deering, 1937) §§ 632, 634; Colorado, 1 Stat. Ann. (1935) Code Civ. Proc. §§ 232, 291 (in actions before referees or for possession of and damages to land); Connecticut, Gen. Stats. §§ 5660, 5664; Idaho, 1 Code Ann. (1932) §§ 7-302 through 7-305; Massachusetts (equity cases), 2 Gen. Laws (Ter. Ed., 1932) ch. 214, § 23; Minnesota, 2 Stat. (Mason, 1927) § 9311; Nevada, 4 Comp. Laws (Hillyer, 1929) § 8783-8784; New Jersey, Sup. Ct. Rule 113, 2 N. J. Misc. 1197, 1239 (1924); New Mexico, Stat. Ann. (Courtright, 1929) § 105-813; North Carolina, Code (1935) § 569; North Dakota, 2 Comp. Laws Ann. (1913) § 7641; Oregon, 2 Code Ann. (1930) § 2-502; South Carolina, Code (Michie, 1932) § 649; South Dakota, 1 Comp. Laws (1929) §§ 25252526; Utah, Rev. Stat. Ann. (1933) § 104-26-2, 104-26-3; Vermont (where jury trial waived), Pub. Laws (1933) § 2069; Washington, 2 Rev. Stat. Ann. (Remington, 1932) § 367; Wisconsin, Stat. (1935) § 270.33. The parties may waive this requirement for findings in California, Idaho, North Dakota, Nevada, New Mexico, Utah, and South Dakota.

In the following states the review of findings of fact in all non-jury cases, including jury waived cases, is assimilated to the equity review: Alabama, Code Ann. (Michie, 1928) §§ 9498, 8599; California, Code Civ. Proc. (Deering, 1937) § 956a; but see 20 Calif. Law Rev. 171 (1932); Colorado, Johnson v. Kountze, 21 Colo. 486, 43 Pac. 445 (1895), semble: Illinois, Baker v. Hinricks, 359 Ill. 138, 194 N. E. 284 (1934), Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 195 N. E. 420, 98 A. L. R. 169 (1935); Minnesota, State Bank of Gibbon v. Walter, 167 Minn. 37, 38, 208 N. W. 423 (1926), Waldron v. Page, 191 Minn. 302, 253 N. W. 894 (1934); New Jersey, N. J. Comp. Stat. (2 Cum. Supp. 1911– 1924) Title 163, § 303, as interpreted in Bussy v. Hatch, 95 N. J. L. 56, 111 A, 546 (1920); New York, York Mortgage Corporation v. Clotar Const. Corp., 254 N. Y. 128, 133, 172 N. E. 265 (1930); North Dakota, Comp. Laws Ann. (1913)7846, as amended by N. D. Laws 1933, ch. 208, Milnor Holding Co. v. Holt, 63 N. D. 362, 370, 248 N. W. 315 (1933); Oklahoma, Wichita Mining and Improvement Co. v. Hale, 20 Okla. 159, 167, 94 Pac. 530 (1908); South Dakota, Randall v. Burk Township, 4 S. D. 337, 57 N. W. 4 (1893); Texas, Custard v. Flowers, 14 S. W. 2d 109 (1929); Utah, Rev. Stat. Ann. (1933) § 104-41-5; Vermont, Roberge v. Troy, 105 Vt. 134, 163 Atl. 770 (1933); Washington, 2 Rev. Stat. Ann. (Remington, 1932) §§ 309-316; McCullough v. Puget Sound Realty Associates, 76 Wash. 700, 136 Pac. 1146 (1913), but see Cornwall v. Anderson, 85 Wash. 369, 148 Pac. 1 (1915); West Virginia, Kinsey v. Carr, 60 W. Va. 449, 55 S. E. 1004 (1906), semble; Wisconsin, Stat. (1935) § 251.09; Campbell v. Sutliff, 193 Wis. 370, 214 N. W. 374 (1927), Gessler v. Erwin Co., 182 Wis. 315, 193 N. W. 363 (1924).

For examples of an assimilation of the review of andings of fact in cases tried without a jury to the review at law as made in several states, see Clark and Stone, Review of Findings of Fact, 4 U. of Chi. L. Rev. 190, 215 (1937). NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO

RULES

Note. Subdivision (a). The amended rule makes clear that the requirement for findings of fact and conclusions of law thereon applies in a case with an advisory jury. This removes an ambiguity in the rule as originally stated. but carries into effect what has been considered its intent. 3 Moore's Federal Practice, 1938, 3119. Hurwitz v. Hurwitz, App. D. C. 1943, 78 U. S. App. D. C. 66, 136 F. 2d 796. The two sentences added at the end of Rule 52 (a) eliminate certain difficulties which have arisen concerning findings and conclusions. The first of the two sentences permits findings of fact and conclusions of law to ap

e. g., United States v. One 1941 Ford Sedan, S. D. Tex. 1946, 65 F. Supp. 84. Under original Rule 52 (a) some courts have expressed the view that findings and conclusions could not be incorporated in an opinion. Detective Comics, Inc. v. Bruns Publications, S. D. N. Y. 1939, 28 F. Supp. 399; Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Cincinnati & L. E. R. Co., S. D. Ohio 1941, 43 F. Supp. 5; United States v. Aluminum Co. of America, 8. D. N. Y. 1941, 2 F. R. D. 224, 5 Fed. Rules Serv. 52a.11, Case 3; see also s. c., 44 F. Supp. 97. But, to the contrary, see Wellman v. United States, D. Mass. 1938, 25 F. Supp. 868; Cook v. United States, D. Mass. 1939, 26 F. Supp. 253; Proctor v. White, D. Mass. 1939, 28 F. Supp. 161; Green Valley Creamery, Inc. v. United States, C. C. A. 1st, 1939, 108 F. 2d 342. See also Matton Oil Transfer Corp. v. The Dynamic, C. C. A. 2d, 1941, 123 F. 2d 999; Carter Coal Co. v. Litz, C. C. A. 4th, 1944, 140 F. 2d 934; Woodruff v. Heiser, C. C. A. 10th, 1945, 150 F. 2d 869; Coca-Cola Co. v. Busch, E. D. Pa. 1943, 7 Fed. Rules Serv. 59b.2, Case 4; Oglebay, Some Developments in Bankruptcy Law, 1944, 18 J. of Nat'l Ass'n of Ref. 68, 69. Findings of fact aid in the process of judgment and in defining for future cases the precise limitations of the issues and the determination thereon. Thus they not only aid the appellate court on review, Hurwitz v. Hurwitz, App. D. C. 1943, 78 U. S. App. D. C. 66, 136 F. 2d 796, but they are an important factor in the proper application of the doctrines of res judicata and estoppel by judgment. Nordbye, Improvements in Statement of Findings of Fact and Conclusions of Law, 1 F. R. D. 25, 26-27; United States v. Forness, C. C. A. 2d, 1942, 125 F.2d 928, cert. den., 1942, 316 U. S. 694, 62 S. Ct. 1293. These findings should represent the judge's own determination and not the long, often argumentative statements of successful counsel. United States v. Forness, supra: United States v. Crescent Amusement Co., 1944, 323 U. S. 173, 65 S. Ct. 254. Consequently, they should be a part of the judge's opinion and decision, either stated therein or stated separately. Matton Oil Transfer Corp. v. The Dynamic, supra. But the judge need only make brief, definite, pertinent findings and conclusions upon the contested matters; there is no necessity for overelaboration of detail or particularization of facts. United States v. Forness, supra; United States v. Crescent Amusement Co., supra. See also Petterson Lighterage & Towing Corp. v. New York Central R. Co., C. C. A. 2d, 1942, 126 F. 2d 992; Brown Paper Mill Co., Inc. v. Irwin, C. C. A. 8th, 1943, 134 F.2d 337; Allen Bradley Co. v. Local Union No. 3, I. B. E. W., C. C. A. 2d, 1944, 145 F. 2d 215, rev'd on other grounds, 1945, 325 U. S. 797, 65 S. Ct. 1533; Young v. Murphy, N. D. Ohio 1946, 9 Fed. Rules Serv. 52a.11, Case 2.

The last sentence of Rule 52 (a) as amended will remove any doubt that findings and conclusions are unnecessary upon, decision of a motion, particularly one under Rule 12 or Rule 56, except as provided in amended Rule 41 (b). As so holding, see Thomas v. Peyser, App. D. C. 1941, 118 F. 2d 369; Schad v. Twentieth Century-Fox Corp., C. C. A. 3d, 1943, 136 F. 2d 991; Prudential Ins. Co. of America v. Goldstein, E. D. N. Y. 1942, 43 F. Supp. 767; Somers Coal Co. v. United States, N. D. Ohio 1942, 2 F. R. D. 532, 6 Fed. Rules Serv. 52a.1, Case 1; Pen-Ken Oil & Gas Corp. v. Warfield Natural Gas Co., E. D. Ky. 1942, 2 F. R. D. 355, 5 Fed. Rules Serv. 52a.1, Case 3; also Commentary, Necessity of Findings of Fact, 1941, 4 Fed. Rules Serv. 936.

NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES

This amendment conforms to the amendment of Rule 58. See the Advisory Committee's Note to Rule 58, as amended.

CROSS REFERENCES

Advisory jury, see rule 39 (c). Extension of time to apply for amendment of findings, limitation on, see rule 6 (b).

Master's report, inclusion of findings of fact and conclusions of law, see rule 53 (e). Motion for

Additional findings, termination of running of time for appeal to court of appeals, see rule 73 (a). New trial, amendment of findings on, see rule 59 (a).

Record on appeal to include findings, see rule 75 (g).

Special verdicts, making of findings on, see rule 49 (a). Stay of proceedings to enforce judgment pending disposition of motion to amend, see rule 62 (b).

RULE 53.-MASTERS

(a) Appointment and compensation.

Each district court with the concurrence of a majority of all the judges thereof may appoint one or more standing masters for its district, and the court in which any action is pending may appoint a special master therein. As used in these rules the word "master" includes a referee, an auditor, and an examiner. The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.

(b) Reference.

A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.

(c) Powers.

The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 43 (c) for a court sitting without a jury. (d) Proceedings.

(I) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of

reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(II) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. (III) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs. (e) Report.

(I) Contents and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(II) In Non-Jury Actions. In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6 (d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

(III) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(IV) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact

shall be final, only questions of law arising upon the report shall thereafter be considered.

(V) Draft Report. Before filing his report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions. NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivision (a). This is a modification of former Equity Rule 68 (Appointment and Compensation of Masters).

Note to Subdivision (b). This is substantially the first sentence of former Equity Rule 59 (Reference to Master-Exceptional, Not Usual) extended to actions formerly legal. See Ex parte Peterson 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed 919 (1920).

Note to Subdivision (c). This is former Equity Rules 62 (Powers of Master) and 65 (Claimants Before Master Examinable by Him) with slight modifications. Compare former Equity Rules 49 (Evidence Taken Before Examiners, Etc.) and 51 (Evidence Taken Before Examiners, Etc.).

Note to Subdivision (d). (1) This is substantially a combination of the second sentence of former Equity Rule 59 (Reference to Master-Exceptional, Not Usual) and former Equity Rule 60 (Proceedings Before Master). Compare former Equity Rule 53 (Notice of Taking Testimony Before Examiner, Etc.).

(2) This is substantially former Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner).

(3) This is substantially former Equity Rule 63 (Form of Accounts Before Master).

Note to Subdivision (e). This contains the substance of former Equity Rules 61 (Master's Report-Documents Identified but not Set Forth), 611⁄2 (Master's ReportPresumption as to Correctness-Review), and 66 (Return of Master's Report-Exceptions-Hearing), with modifications as to the form and effect of the report and for inclusion of reports by auditors, referees, and examiners, and references in actions formerly legal. Compare former Equity Rules 49 (Evidence Taken Before Examiners, Etc.) and 67 (Costs on Exceptions to Master's Report). See Camden v. Stuart, 144 U. S. 104, 12 S. Ct. 585, 36 L. Ed. 363 (1892); Ex parte Peterson, 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed. 919 (1920).

CROSS REFERENCES

Adoption of master's findings by court, see rule 52 (a). Clerks of courts, ineligible to appointment as master, see section 957 of this title.

Default judgment, reference to determine account or amount of damages, see rule 55 (b) (2).

Pre-trial determination as to preliminary reference, see rule 16.

Referees in bankruptcy, eligibility to appointment as, see section 63 of Title 11, Bankruptcy. Report

Judgment not required to recite, see rule 54 (a). Record of appeal to include, see rule 75 (g). Three-Judge Court, appointment of master by single judge, see section 2284 of this title.

United States commissioners, fees for attending to any reference, see section 633 of this title.

VII. JUDGMENT

RULE 54. JUDGMENTS; COSTS

(a) Definition; Form.

"Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.

(b) Judgment upon multiple claims or involving multiple parties.

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties

are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(c) Demand for judgment.

A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

(d) Costs.

Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. As amended Dec. 27, 1946, effective March 19, 1948; Apr. 17, 1961, effective July 19, 1961.

NOTES OF ADVISORY COMMITTEE ON RULES Note to Subdivision (a). The second sentence is derived substantially from former Equity Rule 71 (Form of Decree).

Note to Subdivision (b). This provides for the separate judgment of equity and code practice. See Wis. Stat. (1935)

270.54; Compare N. Y. C. P. A. (1937) § 476.

Note to Subdivision (c). For the limitation on default contained in the first sentence, see 2 N. D. Comp. Laws Ann. (1913) § 7680; N. Y. C. P. A. (1937) § 479. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 13, r. r. 3-12. The remainder is a usual code provision. It makes clear that a judgment should give the relief to which a party is entitled, regardless of whether it is legal or equitable or both. This necessarily includes the deficiency judgment in foreclosure cases formerly provided for by Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.).

Note to Subdivision (d). For the present rule in common law actions, see Ex parte Peterson, 253 U. S. 300, 40 S. Ct 543, 64 L. Ed. 919 (1920); Payne, Costs in Common Law Actions in the Federal Courts (1935), 21 Va. L. Rev. 397.

The provisions as to costs in actions in forma pauperis contained in U. S. C., Title 28, former §§ 832-836 are unaffected by this rule. Other sections of U. S. C., Title 28, which are unaffected by this rule are: former §§ 815 (Costs; plaintiff not entitled to, when), 821 (Costs; infringement of patent; disclaimer), 825 (Costs; several actions), 829 (Costs; attorney liable for, when), and 830 (Costs; bill of; taxation).

The provisions of the following and similar statutes as to costs against the United States and its officers and agencies are specifically continued:

U. S. C., Title 15, §§ 77v (a), 78aa, 79y (Securities and Exchange Commission)

U. S. C., Title 16, § 825p (Federal Power Commission)

U. S. C., Title 26, §§ 3679 (d) and 3745 (d) (Internal revenue actions)

U. S. C., Title 26, § 3770 (b) (2) (Reimbursement of costs of recovery against revenue officers)

U. S. C., Title 28, former § 817 (Internal revenue actions) U. S. C., Title 28, former § 836 (United States-actions in forma pauperis)

U. S. C., Title 28, former § 842 (Actions against revenue officers)

U.S. C., Title 28, former § 870 (United States-in certain cases)

U. S. C., Title 28, former § 906 (United States-foreclosure actions)

U. S. C., Title 47, § 401 (Communications Commission) The provisions of the following and similar statutes as to costs are unaffected:

U. S. C., Title 7, § 210 (f) (Actions for damages based on an order of the Secretary of Agriculture under Stockyards Act)

U. S. C., Title 7, § 499g (c) (Appeals from reparations orders of Secretary of Agriculture under Perishable Commodities Act)

U. S. C., Title 8, § 45 (Action against district attorneys in certain cases)

U. S. C., Title 15, § 15 (Actions for injuries due to violation of antitrust laws)

U. S. C., Title 15, § 72 (Actions for violation of law forbidding importation or sale of articles at less than market value or wholesale prices)

U. S. C., Title 15, § 77k (Actions by persons acquiring securities registered with untrue statements under Securities Act of 1933)

U. S. C., Title 15, § 781 (e) (Certain actions under the Securities Exchange Act of 1934)

U. S. C., Title 15, § 78r (Similar to 781 (e))

U. S. C., Title 15, § 96 (Infringement of trade-markdamages)

U. S. C., Title 15, § 99 (Infringement of trade-markinjunctions)

U. 8. C., Title 15, § 124 (Infringement of trade-markdamages)

U. S. C., Title 19, § 274 (Certain actions under customs law)

U. S. C., Title 30, § 32

(Action to determine right to possession of mineral lands in certain cases) U. S. C., Title 31, §§ 232 and 234 (Action for making false claims upon United States)

U. S. C., Title 33, § 926 (Actions under Harbor Workers' Compensation Act)

U. S. C., Title 35, § 67 (Infringement of patent-damages)

U. S. C., Title 35, § 69 (Infringement of patent-pleading and proof)

U. S. C., Title 35, § 71 (Infringement of patent-when specification too broad)

U. S. C., Title 45, § 153p (Actions for non-compliance with an order of National R. R. Adjustment Board for payment of money)

U. S. C., Title 46, § 38 (Action for penalty for failure to register vessel)

U. S. C., Title 46, § 829 (Action based on non-compliance with an order of Maritime Commission for payment of money)

U. S. C., Title 46, § 941 (Certain actions under Ship Mortgage Act)

U. S. C., Title 46, § 1227 (Actions for damages for violation of certain provisions of the Merchant Marine Act, 1936)

U. S. C., Title 47, § 206 (Actions for certain violations of Communications Act of 1934)

U. S. C., Title 49, § 16 (2) (Action based on non-compliance with an order of I. C. C. for payment of money)

NOTES OF ADVISORY COMMITTEE ON 1946 AMENDMENTS TO

RULES

Note. The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute. Hohorst v. Hamburg-American Packet Co., 1893, 148 U. S. 262, 13 S. Ct. 590; Rexford v. Brunswick-Balke-Collender Cc., 1913, 228 U. S. 339, 33 S. Ct. 515; Collins v. Miller, 1920, 252 U. S. 364, 40 S. Ct.