Hardy v. Bankers Life & Casualty Co.
| Citation | 222 F.2d 827 |
| Decision Date | 26 May 1955 |
| Docket Number | No. 11446.,11446. |
| Parties | J. Herschel HARDY, Plaintiff-Appellant, v. BANKERS LIFE & CASUALTY CO., a corporation, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Irving Breakstone, John O'C. Fitzgerald, Joseph Keig, Sr., Chicago, Ill., for appellant.
Charles F. Short, Jr., Chicago, Ill., for appellee.
Before DUFFY, Chief Judge, and LINDLEY, Circuit Judge.
This is a motion to dismiss the appeal. Plaintiff filed a complaint in the District Court charging conspiracy and demanding compensatory damages of $15,000,000, and exemplary damages of $10,000,000. Three Illinois corporations and seven individuals, citizens of Illinois, were named as defendants and were served with process. These defendants will hereinafter be called "Appellees". Two Texas corporations and two nonresident individuals were also named as defendants but were not served.
Appellees filed a motion for summary judgment which was granted as to them on March 8, 1955. Plaintiff appeals from this order. The basis for the pending motion to dismiss the appeal is that the order appealed from is not a final decision.
Section 1291, Title 28 U.S.Code, grants jurisdiction to this Court to review "all final decisions of the district courts." Section 1292 permits a review of a limited category of interlocutory orders none of which are applicable here. The question before us is whether the order for summary judgment in favor of some but not all of the named defendants is a final decision.
Appellant moves in this Court that defendants, Fiscal Agents, Inc., a Texas corporation, Leland Fikes, Harold J. Knop and Southwest Mortgage and Loan Corporation, a Texas corporation (none of whom were served) be dismissed without prejudice or, in the alternative, that the plaintiff be given ten days from the date of the entry of an order on this motion within which to make a motion in the United States District Court, Northern District of Illinois, Eastern Division, to dismiss said named defendants without prejudice, and to file an augmentation of the record in this Court showing such defendants to have been dismissed without prejudice.
In the ordinary case where complaint is dismissed as to some defendants, leaving the cause pending as to other defendants, it is well established that the order of dismissal is not appealable. Kuhn v. Canteen Food Service, Inc., 7 Cir., 150 F.2d 55, 56; Tauzin v. Saint Paul Mercury Indemnity Co., 5 Cir., 195 F.2d 223, 225; Boston Medical Supply Co. v. Lea & Febiger, 1 Cir., 195 F.2d 853, 855.
Rule 54(b), Federal Rules of Civil Procedure, as amended in 1948, 28 U.S.C., does not help the plaintiff. In the first place, the District Court did not make, as the Rule requires, a determination that there was no...
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...courts did not interpret each party-defendant relationship as constituting a single claim for relief. Hardy v. Bankers Life & Casualty Co., 222 F.2d 827, 828 (7th Cir.1955). 7 In that respect the existence of crossclaims for contribution or indemnity among the defendants does not affect the......
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...have not been served. They are still parties to the lawsuit and service may still be had on some or all of them. Hardy v. Bankers Life & Casualty Co. [7 Cir.], 222 F.2d 827, 828.' " Id. Lohr then states, "The motion to dismiss the appeal is well taken since this court is bound by the author......
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...Corp., 5 Cir., 235 F.2d 233; Nettles v. General Accident Fire & Life Assurance Corp., 5 Cir., 234 F.2d 243; Hardy v. Bankers Life & Casualty Co., 7 Cir., 222 F.2d 827; District 65, etc. v. McKague, 3 Cir., 216 F.2d 153; Youpe v. Moses, 94 U.S.App.D.C. 21, 213 F.2d 613. In Steiner v. 20th Ce......
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Woodbury v. United States
...is my belief that the principles discussed in Brandt v. Renfield Importers, Ltd., 216 F.2d 206 (8 Cir. 1954) and Hardy v. Bankers Life & Casualty Co., 222 F.2d 827 (7 Cir. 1955) would not apply to a judgment of dismissal, which here, is based on the fact that the dismissed claim could only ......
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...See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960); Richards v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th Cir. 1955); Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955). For purposes of Rule 54(b) it was arguable that there were......