Swarb v. Lennox/Concurrence White

MR. JUSTICE WHITE, concurring.

I join in the opinion of the Court and add these comments about a narrow aspect of the case.

It is true that this court has no jurisdiction of that portion of the District Court's judgment from which no appeal or cross-appeal was taken. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191-192 (1937); cf. United States v. Raines, 362 U.S. 17, 27 n. 7 (1960). But it is also well established that the prevailing party below need not cross-appeal to entitle him to support the judgment in his favor of grounds expressly rejected by the court below. Walling v. General Industries Co., 330 U.S. 545 (1947); Langnes v. Green, 282 U.S. 531, 534-539 (1931); United States v. American Railway Express Co., 265 U.S. 425, 435-436 (1924); and the Court may notice a plain error in the record that disposes of a judgment before it. Reynolds v. United States, 98 U.S. 145, addendum n. to op., pp. 168-169 (1879). Thus, despite the fact that appellee-intervenors did not cross-appeal, they were free to support that part of the judgment in their favor on grounds that were presented and rejected by the District Court [p203] in arriving at an adverse judgment on other aspects of the case. Those grounds, if sustained, would not affect the finality of the unappealed judgment, but they would, if sufficient, be available to support the judgment of the District Court insofar as it is challenged here. Nothing to the contrary is to be inferred from our affirmance of that judgment on other grounds. At least that is my understanding of the Court's opinion, which I join.