LARAMORE, Senior Judge.
This is an appeal by the United States of America, originally the third-party plaintiff, from the jury verdict and judgment in the District Court for the Northern District of Illinois, in favor of Alphonse T. Indrelunas, originally the third-party defendant. The decision of the lower court, pursuant to the verdict of the jury, was that defendant, the president of A. T. I. Trucking Corporation, was not liable for the 100 percent penalty assessed against him for his alleged willful failure to pay over withholding taxes due for 1960-1962 from the said A. T. I. Trucking Corporation. The assessment was made under sections 6671 and 6672 of the Internal Revenue Code of 1954, alleging that defendant was the responsible party and that the failure to pay over the withholding taxes was willful. The original decision in this case also included reference to Harry H. Foiles, the original complainant in the case, who was the treasurer and vice president of A. T. I. Corporation and who was also found not liable under the same statute. Said verdict, which was in reference to liability only, the amount in controversy having been stipulated by the parties, was rendered on March 21, 1969. On that same day the District Court Clerk entered the decision of the jury on the appropriate docket for this case pursuant to oral instructions from
Following the notice of appeal on July 9, 1970, it appears that no further significant action was taken by the government until February 23, 1971, some 23 months following the original decision. At that time a motion was filed by the United States to direct entry of judgment in the original case against the United States and in favor of Harry H. Foiles and Alphonse T. Indrelunas. It appears, and the government so admits (page 7, government brief, footnote 6), that the motion was made solely for the purpose of allowing the appeal against Alphonse T. Indrelunas. In that motion the government contended that the docket entry of judgment made by the clerk at the behest of the District Court following the jury verdict was not the type of formal judgment required by Rule 58, Fed.R.Civ.P., to start the statute of limitations for appeals running (Rule 4, Fed.R. of App.Pro.). The government pointed out that Rule 58 contains the sentence "[e]very judgment shall be set forth on a separate document." Therefore, contends the government, since the files in this case did not contain such a separate document referring to final judgment in favor of Foiles and Indrelunas, as so required by Rule 58, such a separate document should be included forthwith. And, it is not until the inclusion thereof that the applicable time limits for appeal would begin.
On February 25, 1971, pursuant to the motions described above, the District Court ordered that formal judgments be entered in favor of Foiles and Indrelunas. This action was taken following the court's Memorandum Opinion and Order wherein Judge Parsons set forth his decision to grant the government's motion with respect to the formal requirements of entering judgment. It is that decision which will hereinafter be reviewed and because we cannot agree with the District Court as to the procedural issue heretofore described, we do not address ourselves to the merits of this case.
Judge Parsons, in his Memorandum Opinion and Order, ruled in favor of the government upon their assertion that the separate document must be included before the case is appealable. His reasoning for doing so included reference to Moore's Federal Practice, in general, and the case of United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958), to be discussed infra. However, as it appears to this court, greatest reliance for the decision below was placed upon a decision of this circuit in Funk v. Franklin Life Insurance Company, 392 F.2d 913, 915 (7th Cir. 1968); Home Fed. Savings & Loan Ass'n v. Republic Ins. Co., 405 F.2d 18 (7th Cir. 1968), wherein it was held that a docket entry and minute order containing the language, "[e]nter judgment on the verdict for plaintiffs for the sum due under the policy of insurance, to be computed," was not a final appealable order.
Upon carefully considering the Funk case it will be noted that the issue concerning the docket entry was in reference to finality not an issue relating to sufficiency of the entry for purposes of starting the time limits for appeal. Indeed, the Funk decision refers to Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1948), as supporting authority.
The real problem raised by this case, i. e., interpreting Rule 58, Fed.R.Civ.P., results from the 1963 revision of Rule 58. Prior to that time the problem presented herein would not have arisen since Rule 58 did not make reference to a separate document setting forth every judgment. This again emphasizes our dilemma here, which is, does the Rule as it now reads require that in every case a separate document must be on file before the time limits for appeal begin to run? Further isolating the issue, we are not concerned with the sufficiency of the docket entry and minute order because there is no dispute that the court ordered such and the clerk entered the verdict on the appropriate docket (See Rule 79(a), Fed.R.Civ.P.).
As mentioned above, Federal Rule 58 was amended in 1963. It now reads as follows:
The changes made by the 1963 revision
Again referring to the clause (1)-type judgments, Moore's Federal Practice, Volume 6A, 1971 Supplement, page 52, recites:
In addition to and in conjunction with the changes referred to above, another more important change was made by the 1963 revision to Rule 58. That change, the significant one for purposes of this case, was the addition of the phrase "[e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." As explained by the Notes of the Advisory Committee, supra, this change was made to alleviate the problems exemplified by United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L. Ed.2d 721 (1958), wherein the court wrote an opinion or memorandum containing some apparent directive or disposition. It was noted that in such instances the clerks have on occasion viewed such opinions or memoranda as being sufficient to satisfy the requirement set forth by the directive now included as clause (2) of the Rule. However, if the memorandum or opinion did not contain all the elements of a judgment, it became "a matter of doubt whether the purported entry of judgment was effective, starting the time running for post-verdict motions and for the purpose of appeal." (Notes of Advisory Committee, supra). Therefore, to alleviate the problem noted, the revision included the separate document requirement. However, and in our opinion, that requirement, since it was designed to eliminate confusion created by memoranda or opinions of the court written as a directive for entry of judgment, was aimed primarily at situations described by clause (2) of Rule 58 since clause (1) does not so require the directive from the court for entry of judgment.
In so interpreting the 1963 revisions of Rule 58 we are aware of certain authority which would favor the position that the separate document is relevant to the situation described in clause (1) as well as clause (2) of Federal Rule 58. See, e. g., Levin v. Wear Ever Aluminum, Inc., 427 F.2d 847 (3rd Cir. 1970); Jenkins v. United States, 325 F.2d 942 (3rd Cir. 1963); United States v. Evans, 365 F.2d 95 (10th Cir. 1966); Pure Oil Co. v. Boyne, 370 F.2d 121 (5th Cir. 1966). Nevertheless, we are of the opinion that when the jury verdict is
As for the intent of the revision, the Notes of the Advisory Committee, supra, state that:
This statement, while directed specifically to the inclusion of the last sentence of the present Rule 58, also generally indicates the desire to encourage reasonable speed in entering judgment. It is, therefore, in our opinion, more in keeping with the purposes of the revision to hold that, in situations as straightforward as those described by the facts of this case, the period of limitations begins to run from the entry of judgment by the clerk.
Indeed, the docket in this case indicates that the government also thought the period of limitations had begun once the docket entry had been made: To wit; the docket for this case shows an entry on July 9, 1970 of "Filed Defendant's Notice of Appeal * * *." This Notice, filed some eight months prior to the February motion for entry of judgment, indicates to this court that the government believed the case to be ripe for appeal following the District Court's directive that entry of judgment be made and there be judgment on the verdicts as so entered.