Thompson v. United States

• Decision Date: 22 November 1957
• Docket Number: No. 7491.,7491.
• Parties: Loren E. THOMPSON, d/b/a Parkersburg Die & Tool Company, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

250 F.2d 43 (1957)

Loren E. THOMPSON, d/b/a Parkersburg Die & Tool Company, Appellant, v. UNITED STATES of America, Appellee.

No. 7491.

United States Court of Appeals Fourth Circuit.

Submitted on Briefs November 11, 1957.

Decided November 22, 1957.

Lawrence M. Ronning, R. E. Stealey, Ronning & Bailey, and Stealey & Handlan, Parkersburg, W. Va., on brief for appellant.

Albert M. Morgan, U. S. Atty. and Robert J. Schleuss, Asst. U. S. Atty., Fairmont, W. Va., on brief for appellee.

Before PARKER, Chief Judge, HAYNSWORTH, Circuit Judge, and THOMSEN, District Judge.

PER CURIAM.

This is an appeal in an action brought by the United States to recover damages for breach of contract. The defendant in his answer asserted counterclaims for damages arising out of the same contract. The counterclaims were dismissed and stricken from the answer on the ground that the court had been given no jurisdiction to entertain them, and from the order of dismissal the defendant brings this appeal.

It is clear that the appeal of defendant is premature and must be dismissed. The order appealed from did not terminate the action between the parties, but merely struck the counterclaims from the answer, leaving the case undecided on the issues raised by the allegations of the complaint and the denial thereof in the answer. It was, therefore, not a final order from which appeal could be taken to this court. Flynn & Emrich Co. v. Greenwood, 4 Cir., 242 F.2d 737; South Carolina State Highway Dept. v. The Fort Fetterman, 4 Cir., 236 F.2d 221; Cox v. Graves, Knight & Graves, 4 Cir., 55 F.2d 217; Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, 434, 44 S.Ct. 144, 147, 68 L.Ed. 371. As said by the Supreme Court in the case last cited:

"It is well settled that a case may not be brought here by writ of error or appeal in fragments; that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 264, 13 S.Ct. 590, 37 L.Ed. 443; Collins v. Miller, 252 U.S. 364, 370, 40 S.Ct. 347, 64 L.Ed. 616; Oneida Navigation Corp. v. W. & S. Job & Co., 252 U.S. 521, 522, 40 S.Ct. 357, 64 L.Ed. 697; and cases therein cited."

Although the appeal must be dismissed for lack of jurisdiction, we think that, in the interest of a prompt disposition of the litigation involved, we should say, in line with our action in Carolina Mills, Inc., v. Corry, 4 Cir., 206 F.2d 76, 77, and Ford Motor Co. v. Milby, 4 Cir., 210 F.2d 137, that all of the judges of this court are of opinion that...