(dissenting).
The sole question presented by appellant is whether or not the trial court made erroneous conclusions of law from the facts found. To determine that question we must determine what facts were found.
Trial of the case was completed on May 25, 1939. Appellees presented their pro*902posed findings of fact and conclusions of law on May 26, 1939. Appellant presented his proposed findings of fact and conclusions of law on May 31, 1939. After deliberation and on June 5, 1939, the court below adopted the findings of fact proposed by appellant, but made different conclusions of law, and judgment was entered on the same day. Sixteen days after entry of judgment and on June 21, 1939, appellees filed a motion to amend the findings. Notice of appeal was filed by appellant on August 31, 1939.
On September 21, 1939, there was entered and filed an “Order Supplementing And Amending The Findings Of Fact”. Therein it was recited that notwithstanding Federal Rules of Civil Procedure, Rule 52(b), 28 U.S.'C.A. following section 723c, “the court possessed inherent power on its motion and, independently of any motion by a litigant to amend the aforesaid heretofore signed Findings so as to make the same adequately and correctly express the opinion and conclusions of the court.” Inspection of the record, I think, leads to the conclusion that the amendment of the findings was an afterthought, and was made to attempt to support a decision after an appeal had already been taken. There is no more reason why .the findings favorable to appellees should have been made on September 21, 1939, than on June 5, 1939, yet such findings were refused on the earlier date.
Appellant based his entire opening brief on the original findings. The last page of such brief is an “Addendum Note” to that effect, wherein appellant gives as his reason for that acti.on that “the ■ trial court had no jurisdiction to enter” the amended and supplemental findings. Appellees, in their brief, stated that there were four questions for decision, one of which was “Whether the trial court possessed the inherent power to make and file the amended findings.” In a reply brief, appellant devotes several pages to the proposition that the amended and supplementary findings cannot be considered. He states: “We conclude therefore that no possible justification exists for any consideration by this court of the so-called amended findings signed by the trial court on September 21, 1939. We so conclude, even though this order recites many of the facts in the case, among them: * * * [Certain detailed facts are set out, most of which are contained in the original findings.]”
Following these recitals appears the alleged “concession” quoted in the majority opinion.
■ It is perfectly clear, I think, that there was no such concession as is asserted by the majority. The statement that the “facts are all admitted, or found and determined” obviously means those contained in the original findings. It is impossible to suppose that appellant would present an opening brief of 45 pages on facts admittedly incomplete, again urge that the amended findings could not be considered in the reply brief, and thereafter destroy all that he had previously said by a “concession”. Reason indicates that the statement in the trial brief is not susceptible to the interpretation placed on it by the majority. The question is not whether the evidence supports the judgment, but whether the evidence supports the findings, because we must sustain the findings unless “clearly erroneous”. Federal Rules of Civil Procedure, Rule 52 (b). Neither question is suggested by the parties.
Appellees contend that we may consider the amended and supplemental findings because, as the trial court held, such court has inherent power to amend its findings. Such contention is beside the point. The point is whether such power, if it exists, may be exercised without regard to any time limit. I think it may not be so exercised.
First. Federal Rules of Civil Procedure, Rule 52(b) provides in part: “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. * * * ”
While the rule obviously refers to action taken on the motion of a party, I believe the time limit, there expressed, applied to action of the court, sua sponte. If not the judgment is a “will-of-the-wisp” act, capable of being changed at any time, and a trial court could effectually prevent any determination of an appeal, by repeated amendments and supplements. Nothing in the rules suggests such frustration of an appeal. Rules and powers with respect to making amended or supplemental findings are similar to and should be considered in the same light as a motion for a new trial. A motion for a new trial must be made within 10 days after entry of judgment, when made by a party, and is subject to the same time limit when granted on the initiative of the court. Rule 59(b) and (d).
*903Second. Even though we consider that the trial court is not limited as to time for such a motion, I think nevertheless that the court’s motion here was too late. Appel-lees do not contend that their motion prevented the taking of the appeal, for obviously Rule 52(b) negatives any such contention. When appellant appealed, the trial court lost jurisdiction to amend its findings thereafter as was attempted. Our jurisdiction had attached, and the trial court had only such jurisdiction over the cause as is given by the Rules. Jurisdiction to amend the findings after appeal is taken is not conferred by the Rules.
Third. Independently of the foregoing, the so-called amended findings should be closely scrutinized. They consist, principally, of a statement of evidence, and are not findings at all. Testimony is actually quoted in such so-called findings.
The question here is one of extreme importance. The majority’s decision fixed a vulnerable precedent, I think, and is likely to breed confusion where certainty is required in a simplified code of practice. For that reason, and believing the majority’s decision to be erroneous, 1 dissent, without expressing any opinion as to the merits.