Julian A. Aubertin v. State Farm Mutual Automobile Insurance Co.

Fifth Circuit

Julian A. Aubertin v. State Farm Mutual Automobile Insurance Co.

252 F.2d 96

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 14, 1958

Docket16933

StatusPublished

Cited by4 cases

This text of 252 F.2d 96 (Julian A. Aubertin v. State Farm Mutual Automobile Insurance Co.) 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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Julian A. Aubertin v. State Farm Mutual Automobile Insurance Co., 252 F.2d 96 (5th Cir. 1958).

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Opinion

PER CURIAM.

This is an appeal from an order of the Trial Court entered June 29, 1957, vacating and setting aside the verdict and judgment for Aubertin and granting a new trial. The reason for this action by the Court below as stated in that order was that the verdict as rendered for $8,166.67 was manifestly a quotient verdict there being no items of special damage which could in any way support such a figure.

Appeal from such an order is premature and cannot be maintained. The appeal must be based on a final judgment below. 28 U.S.C.A. §§ 1291, 1292; Milprint, Inc., v. Donaldson Chocolate Co., 8 Cir., 222 F.2d 898, 902; Bass v. Baltimore & O. Terminal R. Co., 7 Cir., 142 F.2d 779; 6 Moore, Federal Practice #59.09 [4], 59.15 [1] ; 7 Id. #73.09 [4]. There is no such judgment here. This is not a case in which a motion for new trial has been denied thus leaving intact the final judgment entered. See e.g., Texas & N. O. R. Co. v. Underhill, 5 Cir., 234 F.2d 620; Ft. Worth & Denver Ry. Co. v. Roach, 5 Cir., 219 F.2d 351. Instead, the judgment below has been vacated leaving no basis for our review.

The review of the asserted error must await the second trial and appeal from that judgment. Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113; Marshall’s U. S. Auto Supply, Inc., v. Cashman, 10 Cir., 111 F.2d 141.

Appeal dismissed.

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PER CURIAM.

This is an appeal from an order of the Trial Court entered June 29, 1957, vacating and setting aside the verdict and judgment for Aubertin and granting a new trial. The reason for this action by the Court below as stated in that order was that the verdict as rendered for $8,166.67 was manifestly a quotient verdict there being no items of special damage which could in any way support such a figure.

Appeal from such an order is premature and cannot be maintained. The appeal must be based on a final judgment below. 28 U.S.C.A. §§ 1291, 1292; Milprint, Inc., v. Donaldson Chocolate Co., 8 Cir., 222 F.2d 898, 902; Bass v. Baltimore & O. Terminal R. Co., 7 Cir., 142 F.2d 779; 6 Moore, Federal Practice #59.09 [4], 59.15 [1] ; 7 Id. #73.09 [4]. There is no such judgment here. This is not a case in which a motion for new trial has been denied thus leaving intact the final judgment entered. See e.g., Texas & N. O. R. Co. v. Underhill, 5 Cir., 234 F.2d 620; Ft. Worth & Denver Ry. Co. v. Roach, 5 Cir., 219 F.2d 351. Instead, the judgment below has been vacated leaving no basis for our review.

The review of the asserted error must await the second trial and appeal from that judgment. Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113; Marshall’s U. S. Auto Supply, Inc., v. Cashman, 10 Cir., 111 F.2d 141.

Appeal dismissed.

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252 F.2d 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/julian-a-aubertin-v-state-farm-mutual-automobile-insurance-co-ca5-1958.

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