Tobin Packing Co., Inc. v. North American Car Corp. , 188 F.2d 158 ( 1951 )

188 F.2d 158

TOBIN PACKING CO., Inc.,
v.
NORTH AMERICAN CAR CORP. et al.

No. 212.

Docket 21945.

United States Court of Appeals Second Circuit.

Argued April 2, 1951.

Decided April 20, 1951.

Arthur W. Clement and Bigham Englar Jones & Houston, all of New York City, for plaintiff-appellant.

Samuel E. Gates and Debevoise Plimpton & McLean, all of New York City, Robert von Mehren, New York City, of counsel, for defendant-appellee.

Before L. HAND, Chief Judge, and AUGUSTUS N. HAND and CLARK, Circuit Judges.

PER CURIAM.

1

This is an appeal from an order quashing the service of a summons upon the defendant, North American Car Corporation, and dismissing the complaint as to it. The action was removed from the state court where it had been brought against that defendant and the Pennsylvania Railroad Company for damages done to two separate shipments of meat contained in refrigerator cars leased by the defendant to the plaintiff and received for carriage by the railroad. The judge who granted the order did not "direct the entry of a final judgment * * * upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." In the absence of such a determination and direction there is no final judgment, Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A. and the appeal must be dismissed.

2

If the plaintiff procures from the judge the prescribed action, it may file a new appeal; and if both parties file a consent to this course, we will decide the questions raised upon the present appeal upon the record, as supplemented, and upon the briefs already filed. The judge will of course understand that our decision leaves him altogether free to make or refuse the necessary determination and direction.

3

Appeal dismissed.