Opinion
No. 79-1092.
Submitted June 15, 1979.
Decided June 18, 1979.
James R. Cwayna, Minneapolis, Minn., Louis J. Moriarty, of Moriarty, Whaley, Janzen Woods, Minneapolis, Minn., on brief, for appellant.
Kurtis A. Greenley, of Lindquist Vennum, Minneapolis, Minn., for appellee.
Appeal from the United States District Court for the District of Minnesota.
Before LAY, ROSS and HENLEY, Circuit Judges.
This is an appeal in a civil case from a judgment entered by the district court upon the findings of fact and conclusions of law determined by a magistrate after reference to said magistrate upon the stipulation of the parties and an order of the district court.
The Honorable Donald D. Alsop, United States District Judge for the District of Minnesota.
The order of reference of the district court provided in part, as follows:
IT IS ORDERED that trial of the above-entitled action be before Magistrate Robert G. Renner, and that any appeal be directly to the Court of Appeals for the Eighth Circuit from the judgment entered by this court consistent with and pursuant to the [proposed] Findings and Recommendation of the Magistrate, and without appeal to the undersigned from the proposed Findings and Recommendation of the Magistrate.
This type of order of reference * * * is improper because it is well established in this circuit that this court is without jurisdiction to hear appeals directly from a decision of a United States Magistrate. Swanson Youngdale, Inc. v. Seagrave Corp., 542 F.2d 1008 (8th Cir. 1976); Reciprocal Exch. v. Noland, 542 F.2d 462 (8th Cir. 1976); United States v. Haley, 541 F.2d 678 (8th Cir. 1974).
Furthermore, the final order is deficient because it fails to indicate the court considered issues of law. After trial the magistrate filed Findings of Fact, Conclusions of Law, and Recommended Order for Judgment.
Duryea v. Third Northwestern Nat'l Bank of Minneapolis, ___ F.2d ___, at ___ (8th Cir. May 15, 1979).
The judgment of the district court is reversed and the case remanded for further action, and a new judgment, not inconsistent with views expressed by this court in Duryea v. Third Northwestern Nat'l Bank of Minneapolis. Id.