Russell v. Barnes Foundation, 136 F.2d 654 (3d Cir. 1943)

Robert T. McCracken, of Philadelphia, Pa. (Samuel Fessenden, of Philadelphia, Pa., on the brief), for appellant.

Thomas Raeburn White, of Philadelphia, Pa., for appellee.

Before MARIS, JONES, and GOODRICH, Circuit Judges.

PER CURIAM.

In this case the district court entered a summary judgment in favor of the plaintiff and against the defendant under Civil Procedure Rule 56, 28 U.S.C.A. following section 723c, and ordered that the case proceed to trial for the determination of the amount of damages to which the plaintiff is entitled. From the order thus entered the defendant took the present appeal.

The plaintiff has moved to dismiss the appeal upon the ground that the order *655 appealed from is not a final decision subject to appellate review by this court under Section 128 of the Judicial Code, 28 U.S.C.A. § 225. The motion must be granted since the order appealed from, although it determines the liability of the defendant to the plaintiff, will not become a final adjudication of the controversy between them until the damages to which the plaintiff is entitled have been assessed. See Guarantee Co. v. Mechanics' S. B. & Trust Co., 173 U.S. 582, 19 S. Ct. 551, 43 L. Ed. 818.

The appeal is dismissed.