Tobin Packing Co., Inc. v. North American Car Corp.

Second Circuit

Tobin Packing Co., Inc. v. North American Car Corp.

188 F.2d 158, 1951 U.S. App. LEXIS 2978

CourtCourt of Appeals for the Second Circuit

DecidedApril 20, 1951

Docket212, Docket 21945

StatusPublished

Cited by15 cases

This text of 188 F.2d 158 (Tobin Packing Co., Inc. v. North American Car Corp.) 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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Tobin Packing Co., Inc. v. North American Car Corp., 188 F.2d 158, 1951 U.S. App. LEXIS 2978 (2d Cir. 1951).

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Opinion

PER CURIAM.

This is an appeal from an order quashing the service of a summons, upon the defendant, North American Car Corporation, and dismissing the complaint as to it. The action was removed from the state court where it had been brought against that defendant and the Pennsylvania Railroad Company for damages done to two separate shipments of meat contained in refrigerator cars- leased by the defendant to the plaintiff and received for carriage by the railroad. The judge who granted the order did -not “direct .the entry of a final judgment * * * upon an express de *159 termination that there is no just reason for delay and upon an express direction for the entry of judgment.” In the absence of such a determination and direction there is no final judgment, Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A. and the appeal must be dismissed.

If the plaintiff procures from the judge the prescribed action, it may file a new appeal; and if both parties file a consent to this course, we will decide the questions raised upon the present appeal upon the record, as supplemented, and upon the briefs already filed. The judge will of course understand that our decision leaves him altogether free to make or refuse the necessary determination and direction.

Appeal dismissed.

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PER CURIAM.

This is an appeal from an order quashing the service of a summons, upon the defendant, North American Car Corporation, and dismissing the complaint as to it. The action was removed from the state court where it had been brought against that defendant and the Pennsylvania Railroad Company for damages done to two separate shipments of meat contained in refrigerator cars- leased by the defendant to the plaintiff and received for carriage by the railroad. The judge who granted the order did -not “direct .the entry of a final judgment * * * upon an express de *159 termination that there is no just reason for delay and upon an express direction for the entry of judgment.” In the absence of such a determination and direction there is no final judgment, Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A. and the appeal must be dismissed.

If the plaintiff procures from the judge the prescribed action, it may file a new appeal; and if both parties file a consent to this course, we will decide the questions raised upon the present appeal upon the record, as supplemented, and upon the briefs already filed. The judge will of course understand that our decision leaves him altogether free to make or refuse the necessary determination and direction.

Appeal dismissed.

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188 F.2d 158, 1951 U.S. App. LEXIS 2978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tobin-packing-co-inc-v-north-american-car-corp-ca2-1951.

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