Smith v. Benedict
| Decision Date | 16 June 1960 |
| Docket Number | No. 12873.,12873. |
| Citation | 279 F.2d 211 |
| Parties | Addie Elizabeth SMITH, Plaintiff-Appellee, v. Eugene BENEDICT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert B. Johnstone, Leslie H. Vogel, Robert C. Vogel, Chicago, Ill., for defendant-appellant.
Louis S. Griggins, William H. DeParcq, Chicago, Ill., for appellee.
Before SCHNACKENBERG and CASTLE, Circuit Judges, and GRUBB, District Judge.
Action for personal injuries. One of the defenses interposed was the Statute of Limitations. This is an appeal from a "judgment" for plaintiff entered on a trial of the separate defense of the Statute of Limitations.
The judgment denying the defense does not adjudicate or terminate the claim on the merits. It is, therefore, not a final decision from which an appeal may be taken under Section 1291, Title 28 U.S.C.A., Final decisions of district courts. Asher v. Ruppa, 7 Cir., 1949, 173 F.2d 10, and Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631, 89 L. Ed. 911.
The judgment appealed from does not fall within the small class of cases which form an exception to the final decision rule. In these cases review is granted where the decision, although not terminating the litigation, has a final and probably irreparable effect on a right of the parties which might be lost if review were deferred until the whole case is adjudicated. Thus, an order denying a motion that plaintiff give security in connection with the action was held appealable in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, where a serious and unsettled question was presented as to the right to security. In Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 1950, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206, an order vacating attachment of a vessel was held appealable because a later review, after release of the vessel, would be an empty right, and restoration would only theoretically be possible. An order denying defendant's motion for reduction of bail was held appealable because the order was deemed to have a final and irreparable effect on the right of the defendant, was of sufficient importance, and the claimed right was not an ingredient of the cause of action in Heikkinen v. United States, 7 Cir., 1953, 208 F.2d 738.
Although designated a judgment on a separate defense, the decision has the same effect as a denial of a motion to dismiss. Orders denying motions to dismiss have been held nonappealable. Spruill v. Cage, 6 Cir., 1958, 262 F.2d 355; Connell v. Dulien Steel Products, Inc., 5 Cir., 1957, 240...
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...See United States v. Carnes, 618 F.2d 68 (9th Cir. 1980) (motion to dismiss or acquit for insufficient evidence); Smith v. Benedict, 279 F.2d 211 (7th Cir. 1960) (motion to dismiss claim as time-barred). A defendant's rights under the Speedy Trial Act will not be "irreparably lost" if he or......
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...of the Georgia statute is nothing more than an assertion of an affirmative defense whose denial is also not appealable. Smith v. Benedict, 279 F.2d 211 (7th Cir.1960); County of Hennepin v. Aetna Cas. & Sur. Co., 587 F.2d 945 (8th Cir.1978).Freeman v. Kohl & Vick Machine Works, Inc., 673 F.......
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...action."5 6 Moore's Federal Practice ¶ 52.24 at 192-193. Cf. School Dist. No. 5 v. Lundgren, 259 F.2d 101 (C.A.9, 1958); Smith v. Benedict, 279 F.2d 211 (C.A.7, 1960). Fortunately, we need not explore the metaphysical distinctions between the two tests, if, in fact, any exist. Although it w......
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...separate "causes of action." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Smith v. Benedict, 279 F.2d 211, 213 (7th Cir. 1960); see 6 J. Moore, Federal Practice P 54.31, at 471-472 (2d ed. 1974). A "collateral" order, which according to Cohen v. Be......