New Orleans Public Belt R. Co. v. Wallace , 173 F.2d 145 ( 1949 )

HOLMES, Circuit Judge

(dissenting).

I think the motion to dismiss the appeal should be sustained, 'because the order appealed from was not a final judgment, and did not meet the requirements of finality specified in Rule 54(b), as amended, which became effective March 19, 1948. Rule 54(a) provides that ‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.” Rule 54(b) provides that, in the absence of an express determination that there is no just reason for delay, “any order or other form of decision” such as the one under review shall be subject to revision at any time before the entry of judgment adjudicating all the claim.

Under this rule, an opinion is not an order, judgment, or decree. Therefore, the order under review was, and still is, subject to revision by the court below at any time before the entry of judgment adjudicating the entire claim. In re D’Arcy, 3 Cir., 142 F.2d 313; Winkelman v. General Motors Corporation, D.C., 48 F.Supp. 490.