Summary
holding that a district court's order resolving all claims except the amount of damages was not final and appealable
Summary of this case from Clinton v. GarrettOpinion
No. 75-1963.
Submitted March 22, 1976.
Decided March 31, 1976.
Morris E. Stokes, Paul B. Hunker, Jr., St. Louis, Mo., for appellant.
Richmond C. Coburn and Joseph A. Kral, St. Louis, Mo., and Robert D. Mitchell, Chicago, Ill., for appellee.
Appeal from the United States District Court for the Eastern District of Missouri.
Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
This is Laclede's third appeal in this ongoing diversity action for breach of contract. Laclede now appeals from a decree of specific performance entered by the district court on Count I of its suit for breach of contract after reversal and remand by this court in Laclede Gas Company, d/b/a Midwest Gas Company v. Amoco Oil Company, 522 F.2d 33 (8th Cir. 1975). We dismiss this appeal for lack of jurisdiction upon the grounds that the decree of specific performance is not a final decision for purposes of 28 U.S.C. § 1291. There remains outstanding Laclede's claim for damages under Count II of its complaint. See Laclede Gas Company, d/b/a Midwest Missouri Gas Company v. Amoco Oil Company, 522 F.2d 41 (8th Cir. 1975).
The Honorable H. Kenneth Wangelin, United States District Judge for the Eastern District of Missouri.
See Local Rule 9.
The order for specific performance is not one which "ends the litigation and leaves nothing for the court to do but execute the judgment." Wrist-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 516 F.2d 846, 849 (8th Cir. 1975); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, 915 (1945).
Reversed and remanded accordingly.