Opinion
No. 2264.
January 13, 1925.
Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington; George W. McClintic, Judge.
Suit in equity by the Dingess Rum Coal Company against the Steel Tube Company of America. Decree for plaintiff, and defendant appeals. Appeal dismissed.
J. Gilbert Hardgrove, of Milwaukee, Wis. (Arthur W. Fairchild, of Milwaukee, Wis., and Harold A. Ritz, of Charleston, W. Va., on the brief), for appellant.
Douglas W. Brown, of Huntington, W. Va. (Rolla D. Campbell, Campbell Campbell, and Fitzpatrick, Brown Davis, all of Huntington, W. Va., on the brief), for appellee.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
The main issue in the District Court was whether the defendant was liable on its contract with the plaintiff for 10 per cent. royalty on coal used and not sold. This issue was decided in favor of the plaintiff. The decree fixed the number of tons upon which the royalty was due and the liability of the defendant for 10 per cent. of the market value thereon over $1 a ton. As a necessary preliminary to a final judgment, the decree directed a special master to ascertain the market value of the coal, and, upon the basis of that value, report the amount due by the defendant. There has been no report, and no final decree thereon. This court is therefore without jurisdiction, and the appeal must be dismissed. Roswell Beebe et al., v. William Russell, 19 How. 283, 285, 15 L. Ed. 668; Keystone Manganese Co. v. Martin, 132 U.S. 91, 10 S. Ct 32, 33 L. Ed. 275; Lodge v. Twell, 135 U.S. 232, 10 S. Ct. 745, 34 L. Ed. 153; McGourkey v. Toledo Ohio Central R. Co., 146 U.S. 536, 13 S. Ct. 170, 36 L. Ed. 1079; Covington v. Covington First National Bank, 185 U.S. 270, 22 S. Ct. 645, 46 L. Ed. 906; Rexford v. Brunswick-Balke Co., 228 U.S. 340, 33 S. Ct. 515, 57 L. Ed. 864; Halfpenny v. Miller, 232 F. 113, 146 C.C.A. 305 (fourth circuit)
Appeal dismissed.