Zella Mae Graham, Etc. v. Robert R. Cole, Etc.

Fifth Circuit

Zella Mae Graham, Etc. v. Robert R. Cole, Etc.

483 F.2d 255, 17 Fed. R. Serv. 2d 1051, 1973 U.S. App. LEXIS 8381

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 10, 1973

Docket73-1309

StatusPublished

Cited by2 cases

This text of 483 F.2d 255 (Zella Mae Graham, Etc. v. Robert R. Cole, Etc.) 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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Zella Mae Graham, Etc. v. Robert R. Cole, Etc., 483 F.2d 255, 17 Fed. R. Serv. 2d 1051, 1973 U.S. App. LEXIS 8381 (5th Cir. 1973).

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Opinion

PER CURIAM:

Having reviewed the record in this case we find that at least one defendant, District Attorney Wade of Dallas County, still has pending against him in the District Court so much of the lawsuit as seeks declaratory and injunctive relief. No certificate under F.R.Civ.P. 54(b) has been or could properly have been made on this record which is sparse and fails to provide a factual basis for the Court’s findings, there being neither testimony nor affidavits present.

While the complaint is dismissed with respect to all relief sought as to defendant Sheriff Jones, this is a multi-count, multi-party complaint and under Rule 54(b) unless the court enters the certificate there is no appealable order. In the absence of such a certificate, which for the reasons pointed out above would be administratively inappropriate in this vague case, no order is a final and ap-pealable order. Hence, as to all the appeal must be dismissed. We reiterate our frequent warning that “reversal does not necessarily foreshadow a trial, partial or full blown. That depends on the facts as developed and tested, not what the lawyers say they are in opposing affidavits.” Smith v. St. Paul Fire & Marine Insurance Company, 5 Cir., 1972, 471 F.2d 840, 842. 1 Accordingly, finding that the appeal is not yet ripe, we dismiss the appeal and remand to the trial court.

Appeal dismissed.

1

. See also Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505, 511; Mizell v. North Broward Hospital District, 5 Cir., 1968, 392 F.2d 580; Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320; Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 5 Cir., 1958, 257 F.2d 162, 167; Chagas v. Berry, 5 Cir., 1966, 369 F.2d 637, 642; Barber v. Motor Vessel “Blue Cat”, 5 Cir., 1967, 372 F.2d 626.

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PER CURIAM:

Having reviewed the record in this case we find that at least one defendant, District Attorney Wade of Dallas County, still has pending against him in the District Court so much of the lawsuit as seeks declaratory and injunctive relief. No certificate under F.R.Civ.P. 54(b) has been or could properly have been made on this record which is sparse and fails to provide a factual basis for the Court’s findings, there being neither testimony nor affidavits present.

While the complaint is dismissed with respect to all relief sought as to defendant Sheriff Jones, this is a multi-count, multi-party complaint and under Rule 54(b) unless the court enters the certificate there is no appealable order. In the absence of such a certificate, which for the reasons pointed out above would be administratively inappropriate in this vague case, no order is a final and ap-pealable order. Hence, as to all the appeal must be dismissed. We reiterate our frequent warning that “reversal does not necessarily foreshadow a trial, partial or full blown. That depends on the facts as developed and tested, not what the lawyers say they are in opposing affidavits.” Smith v. St. Paul Fire & Marine Insurance Company, 5 Cir., 1972, 471 F.2d 840, 842. 1 Accordingly, finding that the appeal is not yet ripe, we dismiss the appeal and remand to the trial court.

Appeal dismissed.

1

. See also Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir., 1971, 451 F.2d 505, 511; Mizell v. North Broward Hospital District, 5 Cir., 1968, 392 F.2d 580; Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320; Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, 5 Cir., 1958, 257 F.2d 162, 167; Chagas v. Berry, 5 Cir., 1966, 369 F.2d 637, 642; Barber v. Motor Vessel “Blue Cat”, 5 Cir., 1967, 372 F.2d 626.

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483 F.2d 255, 17 Fed. R. Serv. 2d 1051, 1973 U.S. App. LEXIS 8381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zella-mae-graham-etc-v-robert-r-cole-etc-ca5-1973.

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