304 F.2d 273 (8th Cir. 1962), Misc. 162, Dearborn Stove Co. v. Farmers Union Co-op. Gas & Oil Co.

Docket Nº:Misc. 162.
Citation:304 F.2d 273
Party Name:DEARBORN STOVE COMPANY, Petitioner, v. FARMERS UNION COOPERATIVE GAS & OIL COMPANY, Respondent.
Case Date:June 21, 1962
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 273

304 F.2d 273 (8th Cir. 1962)

DEARBORN STOVE COMPANY, Petitioner,

v.

FARMERS UNION COOPERATIVE GAS & OIL COMPANY, Respondent.

Misc. No. 162.

United States Court of Appeals, Eighth Circuit.

June 21, 1962

Crosby & Nielsen, North Platte, Neb., for Dearborn Stove Co., petitioner.

No response for Farmers Union Cooperative Gas & Oil Co., respondent.

Before JOHNSEN, Chief Judge, and VAN OOSTERHOUT and MATTHES, Circuit judges.

PER CURIAM.

Petitioner requests us to permit an appeal under 28 U.S.C.A. § 1292(b) from an order denying petitioner's Motion for Judgment in Accordance with Motion for Directed Verdict, which was made after the jury had disagreed and had been discharged.

The trial judge had stated in his order denying the motion for judgment that whether he had been wrong in submitting the case to the jury was in his opinion a controlling question of law as to which there was substantial ground for difference of opinion, and one as to which the ultimate termination of the litigation might be materially advanced by an immediate appeal.

The sufficiency of the evidence to go to the jury in an ordinary suit for damages or indemnity is not, however, the kind of question which should be permitted to be made the subject of an appeal under § 1292(b) merely because the jury has disagreed and it is necessary to have a new trial. This is a routine situation in the functioning of any trial court as to which the processes of a general appeal are fully adequate after there has been a final judgment. Were we to permit such an appeal, we could with as much right be asked to grant a review under § 1292(b) on the propriety of a situation in which the court had granted a new trial.

These are not in our opinion the kind of purposes which 1292(b) was...

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