Atwater v. North American Coal Corporation

Second Circuit

Atwater v. North American Coal Corporation

111 F.2d 125, 1940 U.S. App. LEXIS 3590

CourtCourt of Appeals for the Second Circuit

DecidedApril 8, 1940

Docket224

StatusPublished

Cited by44 cases

This text of 111 F.2d 125 (Atwater v. North American Coal Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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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Atwater v. North American Coal Corporation, 111 F.2d 125, 1940 U.S. App. LEXIS 3590 (2d Cir. 1940).

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PER CURIAM.

The plaintiff’s complaint was in four counts. In each count the effort was made to charge the defendants with joint liability. On motion by the defendants to dismiss for failure to state a claim, the district court ordered the first and fourth counts dismissed as to the defendants Taplin and Larsen without leave to amend, and the first count dismissed as to the defendant North American Coal Corporation with leave to amend. The appeal is by the plaintiff from the order of dismissal.

We are of opinion that the appeal may not be entertained. With exceptions of no present importance, our appellate jurisdiction is limited to the review of final decisions. 28 U.S.C. Sec. 225, 28 U.S.C.A. § 225. A dismissal of a complaint by the district court with leave to the plaintiff to amend is not a final decision. Clark v. Kansas City, 172 U.S. 334, 19 S.Ct. 207, 43 L.Ed. 467; Western Electric Co. v. Pacent Reproducer Corporation, 2 Cir., 37 F.2d 14, 15; Cory Brothers v. United States, 2 Cir., 47 F.2d 607. So the dismissal of the first count as to the defendant North American Coal Company with leave to amend is not appealable. As to that defendant the action is still pending in the district court on all counts. Dismissal outright affected only two of the three defendants charged in common. The case thus falls within the rule that a judgment or order dismissing an action as to less than all of several defendants jointly charged is not a final decision for purpose of appeal. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Bank of Rondout v. Smith, 156 U.S. 330, 15 S.Ct. 358, 39 L.Ed. 441; Menge v. Warriner, 5 Cir., 120 F. 816; Hewitt v. McCormick Lumber Co., 2 Cir., 22 F.2d 925; Bush v. Leach, 2 Cir., 22 F.2d 296; Fields v. Mutual Benefit Life Insurance Co., 4 Cir., 93 F.2d 559; Moss v. Kansas City Life Insurance Co., 8 Cir., 96 F.2d 108.

The situation in Collins v. Metro-Goldwyn Pictures Corporation, 2 Cir., 106 F.2d 83, was different. That was not a case where the dismissal touched some but not all defendants.

Appeal dismissed.

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PER CURIAM.

The plaintiff’s complaint was in four counts. In each count the effort was made to charge the defendants with joint liability. On motion by the defendants to dismiss for failure to state a claim, the district court ordered the first and fourth counts dismissed as to the defendants Taplin and Larsen without leave to amend, and the first count dismissed as to the defendant North American Coal Corporation with leave to amend. The appeal is by the plaintiff from the order of dismissal.

We are of opinion that the appeal may not be entertained. With exceptions of no present importance, our appellate jurisdiction is limited to the review of final decisions. 28 U.S.C. Sec. 225, 28 U.S.C.A. § 225. A dismissal of a complaint by the district court with leave to the plaintiff to amend is not a final decision. Clark v. Kansas City, 172 U.S. 334, 19 S.Ct. 207, 43 L.Ed. 467; Western Electric Co. v. Pacent Reproducer Corporation, 2 Cir., 37 F.2d 14, 15; Cory Brothers v. United States, 2 Cir., 47 F.2d 607. So the dismissal of the first count as to the defendant North American Coal Company with leave to amend is not appealable. As to that defendant the action is still pending in the district court on all counts. Dismissal outright affected only two of the three defendants charged in common. The case thus falls within the rule that a judgment or order dismissing an action as to less than all of several defendants jointly charged is not a final decision for purpose of appeal. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; Bank of Rondout v. Smith, 156 U.S. 330, 15 S.Ct. 358, 39 L.Ed. 441; Menge v. Warriner, 5 Cir., 120 F. 816; Hewitt v. McCormick Lumber Co., 2 Cir., 22 F.2d 925; Bush v. Leach, 2 Cir., 22 F.2d 296; Fields v. Mutual Benefit Life Insurance Co., 4 Cir., 93 F.2d 559; Moss v. Kansas City Life Insurance Co., 8 Cir., 96 F.2d 108.

The situation in Collins v. Metro-Goldwyn Pictures Corporation, 2 Cir., 106 F.2d 83, was different. That was not a case where the dismissal touched some but not all defendants.

Appeal dismissed.

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111 F.2d 125, 1940 U.S. App. LEXIS 3590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwater-v-north-american-coal-corporation-ca2-1940.

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