Andris v. Du Pont Cellophane Co.

93 F.2d 421, 1937 U.S. App. LEXIS 2826

Opinion

EVANS, Circuit Judge.

On October 22, plaintiffs moved the District Court to vacate the order of September 23 which dismissed their action. On November 10, the District Court denied this motion to vacate the order of dismissal, and the appeal is from this order.

Defendant has moved this court to dismiss the appeal because the order appealed from is not appealable. This motion was denied without prejudice to its renewal at the time of the hearing on the merits.

The notice of appeal mentions only the order of November 10, which simply denied plaintiffs’ motion to vacate the order of September 23. The assignments of error, however, allege as error the entry of the order of September 23 dismissing the bill of complaint.

The order from which this appeal is taken is not reviewable on appeal. It is < not appealable. Glinski v. United States (C.C.A.) 93 F.2d 418, decided November 9, 1937; Smith v. U. S. ex rel. Gorlo (C.C.A.) 52 F.2d 848.

Aside from this procedural difficulty, it is impossible to sustain plaintiffs’ contentions relative to their right to maintain a common law cause of action in Illinois for the contraction of an occupational disease in Illinois. The reasons which impelled the decisions of this court in McGuire v. Sherwin-Williams Co., 87 F.2d 112; Gestauts v. American Manganese Steel Co., 87 F.2d 1005, are equally applicable in the instant case. The Supreme Court of the State of Illinois has spoken on this question, and. we are bound by its interpretation of the law. McCreery v. Libby-Owens-Ford Glass Co., 363 Ill. 321, 2 N.E.(2d) 290, 105 A.L.R. 75; Vogel v. Johns-Manville Prod. Corp., 363 Ill. 473, 2 N.E.(2d) 716; Boshuizen v. Thompson & Taylor Co., 360 Ill. 160, 195 N.E. 625.

The appeal is dismissed.