239 F.2d 815 (3rd Cir. 1956), 12055, John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co.

Docket Nº:12055.
Citation:239 F.2d 815
Party Name:JOHN E. SMITH'S SONS COMPANY v. LATTIMER FOUNDRY & MACHINE COMPANY, Appellant.
Case Date:December 28, 1956
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 815

239 F.2d 815 (3rd Cir. 1956)

JOHN E. SMITH'S SONS COMPANY

v.

LATTIMER FOUNDRY & MACHINE COMPANY, Appellant.

No. 12055.

United States Court of Appeals, Third Circuit.

December 28, 1956

Argued Dec. 3, 1956.

James P. Costello, Jr., Hazelton, Pa., for appellant.

Edward Darling, Wilkes-Barre, Pa., for appellee.

Before BIGGS, Chief Judge, MARIS, Circuit Judge, and KRAFT, District judge.

MARIS, Circuit Judge.

This is an appeal by the defendant from an order of the District Court for the Middle District of Pennsylvania striking the defendant's motion for a new trial in a suit in which a verdict and judgment thereon had been rendered

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in favor of the plaintiff. It appears that the judgment was entered on June 1, 1954 and that the defendant filed in the clerk's office on June 5, 1954 its motion for a new trial but did not serve the motion upon counsel for the plaintiff until June 16, 1954. On June 28, 1954 the plaintiff moved to strike the defendant's motion for a new trial on the ground that it was not served within the time required by Civil Procedure Rule 59(b), 28 U.S.C. and on July 6, 1954 the defendant moved for the application of Civil Procedure Rule 60(b), clauses (1) and (6), to its motion for a new trial. The district court first denied the plaintiff's motion to strike but after argument on the motion for a new trial the court filed an opinion in which it concluded that its previous action was wrong and accordingly entered an order striking the motion for a new trial. D.C., 19 F.R.D. 379. The defendant thereupon appealed to this court.

The plaintiff has moved in this court to dismiss the appeal upon the ground that the order from which it was taken is not an appealable order. At the argument of the motion it was agreed by counsel that if this court should decide that we have power to consider the appeal on its merits we may so consider and dispose of it on the record and briefs already filed without further oral argument. We accordingly turn first to the question whether the appeal must be dismissed as having been taken from a nonappealable order.

It is true, as the plaintiff urges, that it has been repeatedly held that an order denying a motion for a new trial is not appealable. 1 This, however, is not because the order is not a final decision within the meaning of Section 1291 of Title 28 United States Code, for it is intrinsically final, 2 but rather because it generally does not involve reviewable subject matter. 3 Ordinarily the denial of a new trial either involves an exercise of discretion, which is unreviewable in the absence of a clear abuse of it, 4 or redetermines questions of law and fact which were settled by the prior judgment of the court and which are, therefore, reviewable only on appeal from the original judgment. 5 However, to the extent that the denial of a motion for a new trial involves new matters arising after the entry of the judgment and which were accordingly not decided by the judgment, it may present appealable subject matter for consideration upon an appeal from the order denying the motion as distinguished from an appeal from the original judgment. 6 In Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, 482-483, 53 S.Ct. 252, 255, 77 L.Ed. 439,

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Justice Brandeis said:

'Under certain circumstances the appellate court may inquire into the action of the trial court on a motion for a new trial. Thus, its denial may be reviewed if the trial court erroneously excluded from consideration matters which were appropriate to a decision on the motion, Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917; Ogden v. United States, 3 Cir., 112 F. 523; or if it acted on the mistaken view that there was no jurisdiction to grant it, or that there was no authority to grant it on the ground advanced, Felton v. Spiro, 6 Cir., 78 F. 576, 581; Dwyer v. United States, 9 Cir., 170 F. 160, 165; Paine v. St. Paul Union Stockyards Co., 8 Cir., 35 F.2d 624, 626-628.'

The present appeal falls into the category just described. For the order from which it was taken clearly had finality, being...

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