Weaver v. Atlas Oil Co.

Fifth Circuit

Weaver v. Atlas Oil Co.

39 F.2d 847, 1930 U.S. App. LEXIS 4160

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 11, 1930

DocketNo. 5637

StatusPublished

Cited by4 cases

This text of 39 F.2d 847 (Weaver v. Atlas Oil 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.

Bluebook

Weaver v. Atlas Oil Co., 39 F.2d 847, 1930 U.S. App. LEXIS 4160 (5th Cir. 1930).

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Opinion

GRUBB, District Judge.

This is an appeal from an order of the District Court of the United States for the Western District of Louisiana transferring the cause from the law to the equity side of the docket of the court. The action was one at law for damages and for the cancellation of a contract of lease and for the restoration of plaintiff to the possession of the leased premises. A motion to dismiss the appeal, because the order appealed from is not a final judgment, is presented, and we think must prevail. The order is neither a final order, nor is it an interlocutory order of the class from which an appeal lies under section 129 of the Judicial Code (section 227, title 28, USCA). The order is not a final judgment. Gas & Electric Securities Co. v. Manhattan, etc., Corp. (C. C. A.) 266 F. 632; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S. Ct. 15, 27 L. Ed. 73.

Errors are assigned also to an order made January 3, 1929, dismissing the claim against two nonresident corporation defendants for want of jurisdiction, the suit having been brought in a district not the district of the residence of either the plaintiff or the nonresident defendants. We need not consider this order on the merits. It is not the one appealed from; the one appealed from is dated May 8, 1929, and it, not being a final judgment, would not support an assignment of error, predicated on another and different order. The order is itself not final; indeed, appears to be merely an opinion of the court, and not an order at all. If an order, it is not one finally disposing of the cause as to the plaintiff or any of the defendants. If final, the appeal was taken more than ninety days from the date of the order, and should be dismissed for lack of jurisdiction.

The motion to dismiss the appeal is well taken, and the appeal is dismissed, and it is so ordered.

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GRUBB, District Judge.

This is an appeal from an order of the District Court of the United States for the Western District of Louisiana transferring the cause from the law to the equity side of the docket of the court. The action was one at law for damages and for the cancellation of a contract of lease and for the restoration of plaintiff to the possession of the leased premises. A motion to dismiss the appeal, because the order appealed from is not a final judgment, is presented, and we think must prevail. The order is neither a final order, nor is it an interlocutory order of the class from which an appeal lies under section 129 of the Judicial Code (section 227, title 28, USCA). The order is not a final judgment. Gas & Electric Securities Co. v. Manhattan, etc., Corp. (C. C. A.) 266 F. 632; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 S. Ct. 15, 27 L. Ed. 73.

Errors are assigned also to an order made January 3, 1929, dismissing the claim against two nonresident corporation defendants for want of jurisdiction, the suit having been brought in a district not the district of the residence of either the plaintiff or the nonresident defendants. We need not consider this order on the merits. It is not the one appealed from; the one appealed from is dated May 8, 1929, and it, not being a final judgment, would not support an assignment of error, predicated on another and different order. The order is itself not final; indeed, appears to be merely an opinion of the court, and not an order at all. If an order, it is not one finally disposing of the cause as to the plaintiff or any of the defendants. If final, the appeal was taken more than ninety days from the date of the order, and should be dismissed for lack of jurisdiction.

The motion to dismiss the appeal is well taken, and the appeal is dismissed, and it is so ordered.

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Bluebook (online)

39 F.2d 847, 1930 U.S. App. LEXIS 4160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-atlas-oil-co-ca5-1930.

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