Amstar Corporation v. Southern Pacific Transport Company of Texas and Louisiana

Fifth Circuit

Amstar Corporation v. Southern Pacific Transport Company of Texas and Louisiana

607 F.2d 1100, 28 Fed. R. Serv. 2d 1250, 1979 U.S. App. LEXIS 10034

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 3, 1979

Docket79-2243

StatusPublished

Cited by32 cases

This text of 607 F.2d 1100 (Amstar Corporation v. Southern Pacific Transport Company of Texas and Louisiana) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Amstar Corporation v. Southern Pacific Transport Company of Texas and Louisiana, 607 F.2d 1100, 28 Fed. R. Serv. 2d 1250, 1979 U.S. App. LEXIS 10034 (5th Cir. 1979).

Pincite

Opinion

PER CURIAM:

Appellant seeks to raise an issue as to the proper measure of damages resulting from damage done to a shipment of sugar from appellant’s- factory to a customer. The shipment was transported by appellee and it was contended that the damage occurred enroute. However, because the case was ultimately resolved in the district court, by a consent judgment, we conclude that the appeal must be dismissed.

The original complaint alleged liability and damages. Before trial, the defendant, appellee here, filed a motion for partial summary judgment as to damages. Over the plaintiff’s objection, the trial judge granted a limited summary judgment, restricted the plaintiff’s claim to a lesser amount of damages than the plaintiff had sought. Thereafter, the parties entered into a pretrial order in which certain facts were stipulated and certain issues of fact and issues of law were set out as being contested. According to the pretrial order a full contest remained as to whether or not the plaintiff-appellant had delivered the sugar to the carrier in good condition, whether the carrier had been guilty of any negligence at all, and whether any damage to the cargo was the carrier’s fault or the plaintiff’s fault. After the case had been assigned for trial, the parties entered into a consent judgment upon stipulated facts resolving all of the contested issues in favor of the plaintiff-appellant and awarding the limited damages theretofore found appropriate by the court. Although the consent judgment contained a recognition that the plaintiff wished to appeal the issue of the limitation of damages, the fact that both parties freely consented to the entry of a final judgment precludes an appeal from it. See White & Yarborough v. Dailey, 228 F.2d 836 (5th Cir. 1955) (Per Curiam).

The appeal is

DISMISSED.

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PER CURIAM:

Appellant seeks to raise an issue as to the proper measure of damages resulting from damage done to a shipment of sugar from appellant’s- factory to a customer. The shipment was transported by appellee and it was contended that the damage occurred enroute. However, because the case was ultimately resolved in the district court, by a consent judgment, we conclude that the appeal must be dismissed.

The original complaint alleged liability and damages. Before trial, the defendant, appellee here, filed a motion for partial summary judgment as to damages. Over the plaintiff’s objection, the trial judge granted a limited summary judgment, restricted the plaintiff’s claim to a lesser amount of damages than the plaintiff had sought. Thereafter, the parties entered into a pretrial order in which certain facts were stipulated and certain issues of fact and issues of law were set out as being contested. According to the pretrial order a full contest remained as to whether or not the plaintiff-appellant had delivered the sugar to the carrier in good condition, whether the carrier had been guilty of any negligence at all, and whether any damage to the cargo was the carrier’s fault or the plaintiff’s fault. After the case had been assigned for trial, the parties entered into a consent judgment upon stipulated facts resolving all of the contested issues in favor of the plaintiff-appellant and awarding the limited damages theretofore found appropriate by the court. Although the consent judgment contained a recognition that the plaintiff wished to appeal the issue of the limitation of damages, the fact that both parties freely consented to the entry of a final judgment precludes an appeal from it. See White & Yarborough v. Dailey, 228 F.2d 836 (5th Cir. 1955) (Per Curiam).

The appeal is

DISMISSED.

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607 F.2d 1100, 28 Fed. R. Serv. 2d 1250, 1979 U.S. App. LEXIS 10034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amstar-corporation-v-southern-pacific-transport-company-of-texas-and-ca5-1979.

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