Etten v. Kauffman, 10013.
| Decision Date | 10 January 1950 |
| Docket Number | No. 10013.,10013. |
| Citation | 179 F.2d 302 |
| Parties | ETTEN v. KAUFFMAN et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Ralph Hammar, Erie, Pa., for appellant.
Charles F. Meroni, Chicago, Ill. (Carlton Hill, Chicago, Ill., Isaac J. Silin, Erie, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and MARIS and KALODNER, Circuit Judges.
The appeal at bar was taken from a judgment of the court below declaring patent No. 2,406,951 to be void and granting certain other relief to Etten which need not be detailed here. The judgment of the court, however, did not dispose of the counterclaim filed by the defendant and of all the issues raised by the plaintiff's assertion that the defendants were engaged in a conspiracy which damaged the plaintiff.
Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides:
In the instant case the court below did not enter a final judgment upon all the claims and did not make the determination required by Rule 54(b). It follows that under the circumstances the judgment appealed from is not a final judgment. We therefore must dismiss the appeal. Should, however, the court below see fit on remand to vacate the judgment here appealed from, to file a certificate as required by Rule 54(b) and to render a judgment in conformity therewith and if the present appellants should appeal to this court from that judgment, if entered, this court would deem it unnecessary to have the parties reprint briefs or appendices. We may not and do not express any opinion as to whether or not there is any "just reason for delay" in the determination of all the claims. See Rule 54(b).
Accordingly the appeal will be dismissed for want of jurisdiction.
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Pabellon v. Grace Line
...v. Manitoba Sugar Co., 2 Cir., 182 F.2d 742; Tobin Packing Co. v. North American Car Corp., 2 Cir., 188 F.2d 158; Etten v. Kauffman, 3 Cir., 179 F.2d 302; Felder v. D. Loughran Co., D.C.Cir., 188 F.2d 623. Professor Moore, who was active in the drafting of the amended rule, states definitel......
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...65, etc. v. McKague, 216 F.2d 153 (C.A.3, 1954); Shipley Corp. v. Leonard Marcus Co., 214 F.2d 493 (C.A.3, 1954); Etten v. Kauffman, 179 F.2d 302 (C.A.3, 1950). The district court's "determination" and "direction," however, are not binding on the circuit court. Its exercise of discretion in......