Opinion
No. 10489.
January 29, 1943.
Appeal from the District Court of the United States for the Southern District of Mississippi; Sidney C. Mize, Judge.
Action by Mary B. Tompkins against Sinclair Refining Company for personal injuries. Judgment for plaintiff was reversed, with costs of appeal against plaintiff, 117 F.2d 596. From an order denying defendant's motion to stay further proceedings until plaintiff should pay the judgment for costs, defendant appeals.
Appeal dismissed.
L. Bryan Dabney, of Vicksburg, Miss., for appellant.
J.D. Thames and R.M. Kelly, both of Vicksburg, Miss., for appellee.
Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
The appellee obtained a judgment against appellant, which was reversed for error in the trial, with costs of appeal against appellee. Sinclair Refining Co. v. Tompkins, 5 Cir., 117 F.2d 596. Judgment for these costs was entered on entering the mandate in the District Court, and remains unpaid. Appellant moved the District Court to stay further proceedings until appellee should pay this judgment. Appellee moved to be allowed to proceed in forma pauperis, making an affidavit pursuant to the statute. 28 U.S.C.A. § 832. Appellant challenged the affidavit as untrue and moved a dismissal of the cause under 28 U.S.C.A. § 835. The judge heard evidence, sustained the affidavit of poverty, held the cause had probable merit, and should be allowed prosecuted in forma pauperis, and denied the motion for stay. This appeal was taken.
The above recited motions were all proceedings in the pending cause, and the judgment rendered on them did not dispose of the case, but left it to be tried. There is no final judgment from which an appeal will lie. The appeal is accordingly
Dismissed.