Opinion
No. 7081.
November 3, 1939.
Appeal from the District Court of the United States for the Western District of Wisconsin; Patrick T. Stone, Judge.
Suit by the Wisconsin Mutual Insurance Company against the Western Mutual Fire Insurance Company. From an order denying a motion to quash service, defendant appeals. On plaintiff's motion to dismiss the appeal.
Motion granted.
Glen H. Bell, of Madison, Wis., for appellant.
Suel O. Arnold, of Milwaukee, Wis., for appellee.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
Plaintiff instituted this suit in the District Court for the Western District of Wisconsin, and defendant moved to quash service. Its motion was denied. Defendant thereupon appealed to this court, and plaintiff moved to dismiss the appeal because the order denying the motion to quash service is not appealable.
While the early authorities may have been somewhat conflicting, it is now clear that an order granting a motion to quash service is appealable. An order denying a motion to quash service is not appealable.
Rosenberg Bros. Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L. Ed. 372.
Church v. Church, 50 App.D.C. 239, 270 F. 361, 14 A.L.R. 769; Mellon v. Mertz, 58 App.D.C. 302, 30 F.2d 311; also, Longsdorf, Cyclopedia, Sec. 2605. Contra, see Kelley v. Smith Co., 8 Cir., 196 F. 466; Mandel Bros. v. Victory Belt Co., 7 Cir., 15 F.2d 610.
The motion to dismiss is granted.