Summary
noting that district court had granted summary judgment as to liability but "ordered that the case proceed to trial for the determination of the amount of damages to which the plaintiff is entitled"
Summary of this case from Arrow-Pocono Lines, Inc. v. Lowell Land, LLCOpinion
No. 8393.
Argued June 21, 1943.
Decided June 25, 1943.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Guy K. Bard, Judge.
Action by Bertrand Russell against the Barnes Foundation. The District Court entered a summary judgment for plaintiff and ordered the case to proceed to trial for determination of amount of damages to which plaintiff is entitled, 50 F. Supp. 174, and defendant appeals. On plaintiff's motion to dismiss the appeal.
Appeal dismissed.
Robert T. McCracken, of Philadelphia, Pa. (Samuel Fessenden, of Philadelphia, Pa., on the brief), for appellant.
Thomas Raeburn White, of Philadelphia, Pa., for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
In this case the district court entered a summary judgment in favor of the plaintiff and against the defendant under Civil Procedure Rule 56, 28 U.S.C.A. following section 723c, and ordered that the case proceed to trial for the determination of the amount of damages to which the plaintiff is entitled. From the order thus entered the defendant took the present appeal.
The plaintiff has moved to dismiss the appeal upon the ground that the order appealed from is not a final decision subject to appellate review by this court under Section 128 of the Judicial Code, 28 U.S.C.A. § 225. The motion must be granted since the order appealed from, although it determines the liability of the defendant to the plaintiff, will not become a final adjudication of the controversy between them until the damages to which the plaintiff is entitled have been assessed. See Guarantee Co. v. Mechanics' S.B. Trust Co., 173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818.
The appeal is dismissed.