Opinion · Court of Appeals for the Third Circuit

Russell v. Barnes Foundation

Russell v. Barnes Found., 136 F.2d 654 (3d Cir. 1943)

Type
Opinion
Court
Court of Appeals for the Third Circuit
Jurisdiction
Federal
Date
1943-06-25
Topic
bankruptcy

PER CURIAM. In this case the district court entered a summary judgment in favor of the plaintiff and against the defendant under Civil Procedure Rule 56, 28 U.S.C.A. following section 723c, and ordered that the case proceed to trial for the determination of the amount of damages to which the plaintiff is entitled. From the order thus entered the defendant took the present appeal. The plaintiff has moved to dismiss the appeal upon the ground that the order *655 appealed from is not a final decision subject to appellate review by this court under Section 128 of the Judicial Code, 28 U.S.C.A. § 225. The motion must be granted since the order appealed from, although it determines the liability of the defendant to the plaintiff, will not become a final adjudication of the controversy between them until the damages to which the plaintiff is entitled have been assessed.

Citator

UpLaw has not yet analyzed Russell v. Barnes Foundation. The absence of a flag is not a finding that it is good law.

Cited by
20 opinions
RUSSELL v. BARNES FOUNDATION,136 F.2d 654(3rd Cir. 1943)
RUSSELL v. BARNES FOUNDATION.
No. 8393.
Circuit Court of Appeals, Third Circuit.
Argued June 21, 1943.
Decided June 25, 1943.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Guy K. Bard, Judge.

Action by Bertrand Russell against the Barnes Foundation. The District Court entered a summary judgment for plaintiff and ordered the case to proceed to trial for determination of amount of damages to which plaintiff is entitled,50 F. Supp. 174, and defendant appeals. On plaintiff's motion to dismiss the appeal.

Appeal dismissed.
Robert T. McCracken, of Philadelphia, Pa. (Samuel Fessenden, of Philadelphia, Pa., on the brief), for appellant.

Thomas Raeburn White, of Philadelphia, Pa., for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
PER CURIAM.
In this case the district court entered a summary judgment in favor of the plaintiff and against the defendant under Civil Procedure Rule 56, 28 U.S.C.A. following section 723c, and ordered that the case proceed to trial for the determination of the amount of damages to which the plaintiff is entitled. From the order thus entered the defendant took the present appeal.

The plaintiff has moved to dismiss the appeal upon the ground that the orderPage 655appealed from is not a final decision subject to appellate review by this court under Section 128 of the Judicial Code, 28 U.S.C.A. § 225. The motion must be granted since the order appealed from, although it determines the liability of the defendant to the plaintiff, will not become a final adjudication of the controversy between them until the damages to which the plaintiff is entitled have been assessed. See Guarantee Co. v. Mechanics' S.B. Trust Co.,173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818.

The appeal is dismissed.Page 683