Montgomery Ward & Co., Incorporated, Appellant, v. the Collins' Estate, Inc., Appellee, 237 F.2d 253 (4th Cir. 1956)

This is an appeal from an interlocutory order in an action at law in which the District Judge gave answer to certain basic questions involved in the controversy between the parties and referred the case to a special referee to hear evidence and state an account between the parties in accordance with the law as laid down in the order. A motion to dismiss the appeal has been made and must be granted, as it is perfectly clear that the order appealed from is not a final order in the cause and is not in the class of interlocutory orders from which appeal is allowed. As said in the case of Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, 44 S. Ct. 144, 147, 68 L. Ed. 371:

"It is well settled that a case may not be brought here by writ of error or appeal in fragments; that to be reviewable a judgment or decree must be not only final, but complete, that is, final not only as to all the parties, but as to the whole subject-matter and as to all the causes of action involved; and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 264, 13 S. Ct. 590, 37 L. Ed. 443; Collins v. Miller, 252 U.S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616; Oneida Navigation Corporation v. [W. & S.] Job [& Co.], 252 U.S. 521, 522, 40 S. Ct. 357, 64 L. Ed. 697; and cases therein cited."

This is a case in which decision on the question which appellant desires to present by the appeal might, if his contentions were sustained, end the litigation or advance its ultimate termination; and much is to be said in favor of granting a right of appeal from interlocutory orders in such cases.¹  The amendment of the statute, however, is a matter for Congress, not for the courts; and under the law as it now stands we have no option but to dismiss the appeal, since we are given jurisdiction of appeals from final judgments only, except in the special cases enumerated in 28 U.S.C. § 1292. Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S. Ct. 249, 99 L. Ed. 233; City of Morgantown, W. Va. v. Royal Ins. Co. Ltd., 337 U.S. 254, 69 S. Ct. 1067, 93 L. Ed. 1347; International Nickel Co. v. Martin J. Berry Inc., 4 Cir., 204 F.2d 583; International Refugee Organization v. Republic S. S. Corp., 4 Cir., 189 F.2d 858; County Bank, Greenwood, S. C. v. First National Bank of Atlanta, 4 Cir., 184 F.2d 152; Western Contracting Corp. v. National Surety Co., 4 Cir., 163 F.2d 456; Cox v. Graves, Knight & Graves, 4 Cir., 55 F.2d 217, 218; Steel & Tube Co. of America v. Dingess Rum Coal Co., 4 Cir., 3 F.2d 805.

Appeal dismissed.