Johnson v. McDole, 75-3724 Summary Calendar.
| Citation | 526 F.2d 710 |
| Decision Date | 02 February 1976 |
| Docket Number | No. 75-3724 Summary Calendar.,75-3724 Summary Calendar. |
| Parties | Ralph A. JOHNSON, Plaintiff-Appellee, v. Hayes McDOLE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Roland J. Achee, Shreveport, La., for defendant-appellant.
Sydney B. Nelson, Shreveport, La., Frederick L. Hilger, Eureka, Cal., for plaintiff-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Johnson seeks enforcement of a California judgment against McDole. McDole challenges the jurisdiction of the California court. The district court held the California judgment valid, but stayed execution until a counterclaim by McDole against Johnson for breach of a contract factually related to the California judgment could be heard and determined. As far as the record shows, the merits of the counterclaim have not yet been considered.
Although the issue has not been raised by the parties, we conclude that this court is without jurisdiction to entertain this case. The claim of Johnson and the counterclaim of McDole constitute multiple claims within the meaning of Fed.R.Civ.P. 54(b). A decision on one of the claims does not constitute a final appealable order unless the district court makes "an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). No such entry or determination has been made by the district court. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Luckett v. Spivy, 5 Cir. 1974, 490 F.2d 87; United States v. Crow, Pope and Land Enterprises, Inc., 5 Cir. 1973, 474 F.2d 200; Coulter v. Sears, Roebuck and Co., 5 Cir. 1969, 411 F.2d 1189; Tompkins Motor Lines v. Georgia Broilers, Inc., 5 Cir. 1958, 260 F.2d 830.
Appeal dismissed.
To continue reading
Request your trial
-
Ringwald v. Harris
...to dismiss the appeal for want of jurisdiction. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978); Johnson v. McDole, 526 F.2d 710 (5th Cir. 1976); Melancon v. Insurance Company of North America, 476 F.2d 594 (5th Cir. 1973); United States v. Crow, Pope and Land Enterprises,......
-
Spangle v. Ming Tah Elec. Co., s. 88-1568
...Schick Elec., Inc., 516 F.2d 772, 778 (7th Cir.1975); Johnson v. McDole, 394 F.Supp. 1197, 1203 (W.D.La.1975), appeal dismissed, 526 F.2d 710, 711 (5th Cir.1976). If this rejection was erroneous, Tacony could have obtained relief by appealing from the judgment. Thus, Tacony was required to ......
-
U.S. v. Taylor
...their counterclaims. Unfortunately, the December 7, 1979, order is an interlocutory order rather than a final order. Johnson v. McDole, 526 F.2d 710 (5th Cir. 1976) (counterclaim); Fowler v. Merry, 468 F.2d 242 (10th Cir. 1972) (motion to join parties); Bush v. United Benefit Fire Ins. Co.,......
-
Setzer v. U.S.
...as final under Rule 54(b). See Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1158-59 (6th Cir.1988); Johnson v. McDole, 526 F.2d 710, 711 (5th Cir.1976).3 Since we accept Setzer's argument that his claim should not have been dismissed, we need not address his argument that th......