Street Smith Publications v. Spikes

Full title: STREET SMITH PUBLICATIONS, Inc., v. SPIKES

Court: Circuit Court of Appeals, Fifth Circuit

Date published: Nov 25, 1939

107 F.2d 755 (5th Cir. 1939)

Opinion

No. 9210.

November 25, 1939.

Appeal from the District Court of the United States for the Northern District of Texas; T. Whitfield Davidson, Judge.

Action for libel by Fred Spikes against the Street Smith Publications, Incorporated. From an order overruling a motion to quash the summons and return thereon, defendant appeals. On appellee's motion to dismiss the appeal.

Motion sustained.

J.I. Kilpatrick, of Lubbock, Tex., and Neil P. Cullom, of New York City, for appellant.

G.E. Lockhart and F.D. Brown, both of Lubbock, Tex., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from an order of the district court overruling a motion to quash the process. The appellee moves to dismiss the appeal on the ground that the order appealed from is neither a final decision nor an interlocutory order or decree which this court has appellate jurisdiction to review under Sections 128 and 129 of the Judicial Code, as amended, 28 U.S.C.A. §§ 225 and 227.

This is an action for damages for an alleged libel; it was filed in a Texas state court by appellee against appellant; service of process was had upon appellant by delivering to K.H. Page, its alleged local agent, a copy of the summons and complaint. Appellant filed a motion to quash said summons and the return thereon, alleging as grounds that Page was not its agent and was not authorized by law to receive service of process. The district court overruled said motion, and it is from this order that appellant has attempted to appeal.

Although the case was argued orally and in briefs by appellant, no reason has been given or authority cited to sustain this appeal. The case has not been heard on its merits. The entire controversy has not been decided.

The order attempted to be appealed from lacks that finality required to give this court appellate jurisdiction of the case. La Bourgogne, 210 U.S. 95, 28 S.Ct. 664, 52 L.Ed. 973; Ex parte Tiffany, 252 U.S. 32, 40 S.Ct. 239, 64 L.Ed. 443; Mellon v. Mertz, 58 App.D.C. 302, 30 F.2d 311; Emlenton Refining Co. v. Chambers, 3 Cir., 14 F.2d 104; Church v. Church, 50 App. D.C. 237, 270 F. 359.

The motion to dismiss is sustained.