Nadler v. Bohen

Decision Date12 January 1968
PartiesEsther NADLER, Executrix of the Estate of Irving Nadler et al., Plaintiffs Below, Appellants, v. Fred BOHEN et al., Defendants Below, Appellees.
CourtUnited States State Supreme Court of Delaware

Irving Morris and Joseph A. Rosenthal of Cohen, Morris & Rosenthal, Wilmington, and Philip Jones, of Wolf, Popper, Ross, Wolf & Jones, New York City, for appellants.

George Tyler Coulson, of Morris, Nichols, Arsht & Tunnell, Wilmington, for individual appellees.

Henry M. Canby, of Richards, Layton & Finger, Wilmington, for Allis-Chalmers Manufacturing Company, appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is a motion to dismiss an appeal from an interlocutory order in stockholders' class and derivative actions charging the individual directors of Allis-Chalmers with breach of fiduciary duty.

The order appealed from sets a trial date for January 29, 1968 over the opposition of the plaintiffs who complain, by reason of the illness of chief trial counsel, that it is impossible adequately to prepare the case for trial by that date. It is argued that the action of the Vice Chancellor in so ruling is arbitrary, an abuse of discretion, and denies plaintiffs due process of law in that they are denied the right to have the trial conducted by counsel of their own choice.

The defendant-directors moved to dismiss the appeal on the ground that the order appealed from is an interlocutory order, not appealable under the Constitution of this State.

By Article IV, Section 11 of the Constitution of this State, Del.C.Ann., the Supreme Court is given jurisdiction to 'determine finally all matters of appeal in the interlocutory or final decrees and other proceedings in chancery.' This provision, however, does not mean that all interlocutory orders are appealable. To make such an order appealable, it must appear that the order has determined a substantial issue in the cause and established legal rights. DuPont v. DuPont, 32 Del.Ch. 405, 82 A.2d 376; Martin v. American Potash & Chemical Corp., 33 Del.Ch. 234, 92 A.2d 295, 35 A.L.R.2d 1140; Consolidated Fisheries Co. v. Consolidated Solubles Co., 34 Del.Ch. 60, 99 A.2d 497.

It is to be noted that for an interlocutory order to be appealable, it must accomplish two things--first, it must determine a substantial issue in the cause and, second, it must establish a legal right. It is clear from the cited cases that both these elements must be present...

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5 cases
  • C. v. C.
    • United States
    • United States State Supreme Court of Delaware
    • 19 Abril 1974
    ...Delaware Practice § 764 (1906). Intervenor argues that such an order must also relate to the parties to the suit, citing Nadler v. Bohen, Del.Supr., 238 A.2d 836 (1968) as 'It is to be noted that for an interlocutory order to be appealable, it must accomplish two things--first, it must dete......
  • Gardinier, Inc. v. Cities Service Co.
    • United States
    • United States State Supreme Court of Delaware
    • 11 Diciembre 1975
    ...Superior Court cited therein; Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, Del.Supr., 261 A.2d 520 (1969); Nadler v. Bohen, Del.Supr., 238 A.2d 836 (1968); DuPont v. duPont, Del.Supr., 32 Del.Ch. 405, 82 A.2d 376 (1951); Electric Research Products, Inc. v. Vitaphone Corp., Del.S......
  • Hanby v. Maryland Cas. Co.
    • United States
    • United States State Supreme Court of Delaware
    • 1 Abril 1970
    ...must establish a legal right. Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, Del.Supr., 261 A.2d 520 (1969); Nadler v. Bohen, Del.Supr., 238 A.2d 836 (1968). And it is equally settled law that the grant or denial of a stay by a trial court lies within the discretion of that court.......
  • Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park
    • United States
    • United States State Supreme Court of Delaware
    • 17 Diciembre 1969
    ...Del.Supr., 199 A.2d 755 (1964); Lummus Company v. Air Products and Chemicals, Inc., Del.Supr., 243 A.2d 718 (1968); Nadler v. Bohen, Del.Supr., 238 A.2d 836 (1968). In Lummus we stated that, generally speaking, rulings on discovery fall within the class of interlocutory orders considered to......
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