Markham v. Kasper
| Decision Date | 07 December 1945 |
| Docket Number | No. 8782.,8782. |
| Citation | 152 F.2d 270 |
| Parties | MARKHAM v. KASPER et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
O. C. Smith, of Benton, Ill., W. F. Gray, of Springfield, Ill., and George Arthur, of Chicago, Ill., for appellants.
Carter Harrison, of Benton, Ill., Thurlow G. Essington and Hamilton K. Beebe, both of Chicago, Ill., and Charles E. Feirich, of Carbondale, Ill., for appellee Old Ben Coal Corporation.
Harry Temple, of Salem, Ill., for appellee Torbet.
Craig Van Meter and Fred H. Kelly, both of Mattoon, Ill., for appellees Markham and Torbet.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
Defendants appeal from two orders entered by the District Court in a suit by the lessee under an oil and gas lease for an injunction and damages and to quiet his title to the lease.
The first order from which the appeal was taken was entered October 18, 1944, allowing a motion to strike certain paragraphs from the amended answer theretofore filed, and to dismiss the amended crossclaim. The second order, entered January 5, 1945, quashed service of summons on A. W. Torbet, on his motion based on the ground that he was not a party to the original proceeding, having been designated a party defendant for the first time in an amended answer and amended counterclaim filed September 6, 1944, all portions of which pertaining to him were stricken or dismissed by the court October 18, prior to service of summons on him on October 30, 1944.
Defendants treated the two orders of the court as a determination of the cause upon the pleadings and appealed accordingly. It is clear that such appeal was premature. The striking of certain paragraphs of the answer and dismissal of the counterclaim are by no means the equivalent of a judgment on the pleadings. The action was not dismissed, and so far as this record shows, is still pending on the bill of complaint which sought a permanent injunction as well as damages and quiet title under the lease. Hence the order of October 18, lacked the element of finality to Tender it an appealable one. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631; Audi Vision, Inc., v. R. C. A. Mfg. Co., 2 Cir., 136 F.2d 621; Florian v. United States, 312 U.S. 656, 61 S.Ct. 713, 85 L.Ed. 1105, reversing 7 Cir., 114 F.2d 990.
The order of January 5, 1945, is also not appealable. It merely quashed service of summons as to one defendant, but left the rights of the other parties unaffected. It has been held that the dismissal of one defendant from a proceeding, leaving the same controversy as to others jointly charged with him for future disposition by the court, is not an appealable order. Hunteman v....
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...the court now sitting); Oppenheimer v. F. J. Young Co., 2 Cir., 144 F.2d 387; Toomey v. Toomey, App. D.C., 149 F.2d 19; and Markham v. Kasper, 7 Cir., 152 F.2d 270. This carries out a federal policy going back to the early days of the Republic, which "has shown no signs of weakness in recen......
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