Treadwell v. Corker & Smith

Fifth Circuit

Treadwell v. Corker & Smith

245 F. 348, 157 C.C.A. 540, 1917 U.S. App. LEXIS 1499

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 9, 1917

DocketNo. 3086

StatusPublished

Cited by1 cases

This text of 245 F. 348 (Treadwell v. Corker & Smith) 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.

Bluebook

Treadwell v. Corker & Smith, 245 F. 348, 157 C.C.A. 540, 1917 U.S. App. LEXIS 1499 (5th Cir. 1917).

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Opinion

PER CURIAM.

This was an action by the defendants in error (hereinafter referred to as the plaintiffs)' against the plaintiff in error (hereinafter referred to as the defendant) to recover an amount claimed to be due under ah alleged contract. To the plaintiff’s petition the defendant interposed a plea denying the alleged indebtedness, and also a plea of recoupment seeking, to recover of the plaintiff an amount greater than that claimed in the plaintiff’s petition. The plaintiff demurred to the last-mentioned special plea as it was amended.

With reference to this demurrer the record shows that the court “ordered that the demurrer be and it is hereby sustained.” Other than the quoted order, the record does not show any disposition of the issues raised by the pleadings in the case. So far as appears from the record, [349]*349the case stands at issue in the District Court, and the whole of it has not been finally determined by that court. We are of opinion that the order mentioned is not such a final decision as is required to support a writ of error. Judicial Code U. S. § 128; La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181, 28 Sup. Ct. 108, 52 L. Ed. 160; Bank of Rondout v. Smith, 156 U. S. 330, 15 Sup. Ct. 358, 39 L. Ed. 441; Kingman v. Western Mfg. Co., 170 U. S. 675, 18 Sup. Ct. 786, 42 L. Ed. 1192; Maas v. Lonstorf, 166 Fed. 41, 91 C. C. A. 627.

The writ of error is dismissed, without prejudice to the right of the defendant to have an appellate review of the ruling complained of, after a final decision of the case.

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PER CURIAM.

This was an action by the defendants in error (hereinafter referred to as the plaintiffs)' against the plaintiff in error (hereinafter referred to as the defendant) to recover an amount claimed to be due under ah alleged contract. To the plaintiff’s petition the defendant interposed a plea denying the alleged indebtedness, and also a plea of recoupment seeking, to recover of the plaintiff an amount greater than that claimed in the plaintiff’s petition. The plaintiff demurred to the last-mentioned special plea as it was amended.

With reference to this demurrer the record shows that the court “ordered that the demurrer be and it is hereby sustained.” Other than the quoted order, the record does not show any disposition of the issues raised by the pleadings in the case. So far as appears from the record, [349]*349the case stands at issue in the District Court, and the whole of it has not been finally determined by that court. We are of opinion that the order mentioned is not such a final decision as is required to support a writ of error. Judicial Code U. S. § 128; La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; Webster Coal & Coke Co. v. Cassatt, 207 U. S. 181, 28 Sup. Ct. 108, 52 L. Ed. 160; Bank of Rondout v. Smith, 156 U. S. 330, 15 Sup. Ct. 358, 39 L. Ed. 441; Kingman v. Western Mfg. Co., 170 U. S. 675, 18 Sup. Ct. 786, 42 L. Ed. 1192; Maas v. Lonstorf, 166 Fed. 41, 91 C. C. A. 627.

The writ of error is dismissed, without prejudice to the right of the defendant to have an appellate review of the ruling complained of, after a final decision of the case.

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Bluebook (online)

245 F. 348, 157 C.C.A. 540, 1917 U.S. App. LEXIS 1499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/treadwell-v-corker-smith-ca5-1917.

Opinion

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