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295 F.2d 107
LOUISVILLE TRUST COMPANY, and Citizens Fidelity Bank and Trust Company, Joint Administrators with the Will Annexed of the Estate of John A. O'Brien, Deceased, Plaintiffs-Appellees,
v.
Patricia R. SMITH, Defendant-Appellant.No. 14628.
United States Court of Appeals Sixth Circuit.
October 13, 1961.
Walter B. Smith, Louisville, Ky., for defendant-appellant, Patricia R. Smith.
Irvin Marcus, R. Lee Blackwell, Bullitt, Dawson & Tarrant, Louisville, Ky., for plaintiff-appellees, Louisville Trust Co. and Citizens Fidelity Bank & Trust Co., joint administrators with the will annexed of the estate of John A. O'Brien, deceased.
Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.
PER CURIAM.
1The order of the District Court, from which this appeal was taken, granted plaintiffs' motion for leave to file an amended reply to defendant's counterclaim; granted plaintiffs' motion for summary judgment on defendant's counterclaim and denied defendant's motion for leave to file an amended counterclaim.
2The District Court has not yet made any disposition of plaintiff's claim for relief set forth in their complaint which is still pending in that court.
3Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C. provides the only manner in which the court may direct the entry of a final judgment upon one or more, but less than all claims for relief in an action, namely, upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. The District Court made no such express determination and direction. Without such determination and direction the action was not terminated as to any of the claims for relief and the order appealed from is subject to revision at any time before the entry of judgment adjudicating all of the claims. The order was not, therefore, a final order, but is interlocutory in nature. New Amsterdam Casualty Co. v. United States, 5 Cir., 272 F.2d 754; Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 10 Alaska 458. No appeal may be prosecuted from the order until it has become final. 28 U.S.C. § 1291.
4The motion to dismiss is granted and the appeal is dismissed for lack of jurisdiction.
Document Info
Docket Number: 14628_1
Citation Numbers: 295 F.2d 107
Filed Date: 10/13/1961
Precedential Status: Precedential
Modified Date: 2/1/2016