Travelers Indemnity Company v. Erickson's, Inc.
| Decision Date | 02 July 1968 |
| Docket Number | No. 24929.,24929. |
| Citation | 396 F.2d 134 |
| Parties | The TRAVELERS INDEMNITY COMPANY, Appellant, v. ERICKSON'S, INC., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
C. James Jessee, Jr., Atlanta, Ga., Albert Fendig, Jr., Conyers, Fendig, Dickey & Harris, Brunswick, Ga., Shoob, McLain & Jessee, Atlanta, Ga., for appellant.
Alex A. Lawrence, Bouhan, Lawrence, Williams & Levy, Savannah, Ga., for appellee.
Before BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.
This is a case in which the trial court improperly granted a motion for a partial summary judgment and the appellant improvidently appealed therefrom. The appeal must be dismissed since we are without jurisdiction. New Amsterdam Casualty Co. v. B. L. Jones & Company, 254 F.2d 917 (5th Cir. 1958); King v. California Company, 5 Cir., 224 F.2d 193 (1955), opinion on rehearing, 236 F.2d 413 (5th Cir. 1956).
The record discloses an order of the district court granting what plaintiff styled as a motion for summary judgment, with the body thereof being directed to what plaintiff characterized as a part of a claim, and an appeal by the defendant from that order. An interlocutory order is not made appealable merely by characterizing it as having been made under Fed.R.Civ.Proc. 56. See discussion at 6 Moore, Federal Practice, § 56.20 3.-1. The order here is not a final judgment under 28 U.S.C.A. § 1291. It is not an appealable interlocutory order under 28 U.S.C.A. § 1292(a). Nor is it an instance of an affirmative judgment for the plaintiff with an award of execution, made in excess of the authority of the district court. See Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir. 1946); 6 Moore, supra, § 56.20 3.-1.
Also the parties are in sharp dispute over whether the subject matter of the suit is one claim or multiple claims, a matter which appears to us cannot be determined on the present record. Even if the claims are multiple there has been no express determination that there is no just reason for delay and no express direction for the entry of judgment as required by Rule 54(b) to give finality to an order on one of several claims. See New Amsterdam, supra.
The order sought to be appealed from is in its effect an order of the type described in Rule 56(d), specifying facts established without controversy, analogous to a pre-trial order under Rule 16. Such an order is subject to revision by the trial court and has no res judicata effect. New Amsterdam, supra.
The order granted the motion of a subcontractor claiming against the prime contractor's surety on a labor and materials payment bond. The complaint was in four "counts," claiming respectively for specified work, work done pursuant to change orders, items of extra work, and damages for delay, all on the same construction job.
The order was based on a check tendered to the sub by the prime and the affidavit of the sub's president asserting that the check...
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