Atlantic Lumber Co. v. L. Bucki & Son Lumber Co.
| Decision Date | 03 January 1899 |
| Docket Number | 755.,738 |
| Citation | 92 F. 864 |
| Parties | ATLANTIC LUMBER CO. v. L. BUCKI & SON LUMBER CO. (two cases). |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. H Liggitt, for plaintiff in error.
H Bisbee, for defendant in error.
Before PARDEE and McCORMICK, Circuit Judges, and PARLANGE, District Judge.
On Motion to Dismiss.
The defendant in error has made a motion to dismiss this writ of error on the ground that the judgment sought to be reviewed is a judgment dissolving a writ of attachment issued in a pending suit, and is not a final judgment within the meaning of the act of congress creating this court. 1 Supp.Rev.St (2d Ed.)p. 901. The suit was commenced by plaintiff in error on the 1st day of October, 1897, by the issuance of a summons ad respondendum in an action of assumpsit. On the same day an affidavit was filed for an attachment, on the ground that the debt was actually due, and that the defendant lumber company was about to remove its property out of the state of Florida, and was fraudulently disposing of its property, and an attachment issued. In the course of the proceedings, after much and formal pleadings in the main case, the defendant moved to dissolve the attachment on issues of fact raised upon the formal pleadings, which motion was tried by the court without a jury (a jury having been waived by written stipulation), and the attachment was ordered dissolved, no decision being then reached on the merits nor any final judgment rendered in the case. From the order dissolving the attachment this writ was sued out. In Leitensdorfer v. Webb, 20 How. 176, 185, such a judgment or order is held not to be a final judgment from which a writ of error will lie; and the same case also decides that a rule in the state practice allowing appeals from orders dissolving attachments will not affect the practice in the federal courts. The question involved here seems to have been well considered and well decided in the case of Hammer v. Scott, 19 U.S.App. 639, 8 C.C.A. 655, and 60 F. 343, and we think the reasons and authorities there given should control our action. The writ of error is dismissed.
On the Merits.
This suit was brought on a contract entered into between the Ambler Lumber Company and Charles Lloyd Bucki on the 28th of June, 1892, covering the delivery, during a period of eight years, of pine logs, to the amount of 1,500,000 feet, board measure, each month, with the provision that at any time within four months from the starting up of the Bucki sawmill the quantity to be delivered per month might be increased, at the option of Bucki, on 30 days' notice, not to exceed 2,000,000 feet in any one month, and the amount so fixed was to be delivered monthly during the terms of the contract. The said contract was afterwards assumed by, and became binding upon, the L. Bucki & Son Lumber Company, the defendant in error, and performance thereof was entered upon by the plaintiff and defendant, and continued until October 1, 1897. On that day a praecipe for summons was filed by the plaintiff in the circuit court of Duval county, Fla., in a suit against the defendant, and an affidavit and bond for attachment were also filed. The amount claimed in the affidavit for attachment was $9,980.80, and a writ of attachment was duly issued, which came to the hands of the sheriff at 6:25 p.m. on October 1st, and was executed by levying upon 1,250,000 feet of lumber belonging to the defendant. A summons ad respondendum was also issued, which came to the hands of the sheriff on October 2d, and was subsequently served upon the defendant. On October 1, 1897, another praecipe for summons was filed by the plaintiff in the circuit court of Duval county, Fla., in a suit against the defendant, and another affidavit and bond for attachment. The amount claimed in this affidavit was $75,000, and a writ of attachment was duly issued, which came to the hands of the sheriff at 6:25 p.m. on that day, and was levied upon certain real and personal property belonging to the defendant. A...
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21 Turtle Creek Square, Ltd. v. NEW YORK ST. TEACH. RETIRE. SYS.
...331 U.S. 543, 67 S.Ct. 1428, 91 L.Ed. 1662; Anastasiadis v. S.S. Little John, 5 Cir. 1964, 339 F.2d 538. In Atlantic Lumber Co. v. L. Bucki & Son Lumber Co., 5 Cir. 1899, 92 F. 864, actions brought in the state court were consolidated after their removal to the federal court. Plaintiff appe......
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Youtsey v. United States
...The trial resulted in a verdict of guilty upon the first 25 counts, upon which the court pronounced a judgment. For charge to jury see 92 F. 864. A. Cassatt and Thomas McDougall, for plaintiff in error. Wm. M. Smith, for the United States. Before LURTON, Circuit Judge, and SEVERENS and CLAR......
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Crooker v. Knudsen
... ... 655; Leitensdorfer v. Webb, 20 How ... 176, 15 L.Ed. 891; Atlantic Lumber Co. v. Bucki & Son ... Lumber Co., 92 F. 864, 35 C.C.A. 59; Loeber ... ...
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L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.
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