William J. Flanagan, Plaintiff-appellee, v. Northern Lumber Company, Inc., Defendant-appellant, 222 F.2d 539 (2d Cir. 1955)

In addition to setting up its defenses to plaintiff's claim, defendant included in its answer four counterclaims, three for money damages against plaintiff's assignors and one for a judgment declaring certain conveyances of real and personal property made by plaintiff's assignors to certain named defendants to be void and declaring any judgments obtained on the first three counterclaims "to be a lien upon said property." One of the defendants named in the fourth counterclaim is Ida Ohlson, a resident of the State of Illinois, to whom plaintiff's assignor had transferred certain real property located in the Northern District of New York. Northern Lumber Company sought an order authorizing service on Ida Ohlson by publication, pursuant to 28 U.S.C. § 1655. The district judge made an order, 17 F.R.D. 432, denying the motion. From that order Northern Lumber Company appeals.

The order in question was not final. Absent any final order whatever, by no possible interpretation of Fed.Rules Civ. Proc. rule 54(b), 28 U.S.C.A., could an appeal be proper even if the judge had made a certificate of finality pursuant to that Rule.

Appeal dismissed.