M. T. Reed Const. Co. v. Virginia Metal Products Corp.lunda v. Virginia Metal Products Corp, 214 F.2d 127 (5th Cir. 1954)

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US Court of Appeals for the Fifth Circuit - 214 F.2d 127 (5th Cir. 1954) June 25, 1954

William Harold Cox, Jackson, Miss., for M. T. Reed Const. Co.

Harmon W. Broom & William E. Suddath, Jr., Jackson, Miss., for Lunda.

Earl T. Thomas & Charles Clark, Jackson, Miss., for appellees.

Before HOLMES and STRUM, Circuit Judges, and THOMAS, District Judge.

HOLMES, Circuit Judge.

On March 20, 1953, a judgment was entered in favor of M. T. Reed Construction Company; on the same day, in the companion case, a separate judgment was entered for N. W. Lunda, Sr. Naturally no appeal was taken from either of these judgments because each was set aside and held for naught by the court below on motion of the appellee. The reversal of the judgments setting them aside did not ipso facto reinstate the invalidated judgments. 213 F.2d 337; 213 F.2d 339.

Having set aside the verdict and judgment in each of the above cases, the district court entered a separate judgment for the defendant, dismissing each suit notwithstanding the verdict. The only final judgments in these cases, when the appeals were taken, were the ones for the defendant; the previous judgments had been annulled. The final judgments for the defendant were the proper ones to be designated by the appellant in giving notice of appeal, and this is what was done. Such notice of appeal drew in question, and brought up to the appellate court, all prior rulings of the court that rendered that judgment, and all interlocutory orders and relevant matters that preceded it. Roth v. Hyer, 5 Cir., 142 F.2d 227, 228, certiorari denied, 323 U.S. 712, 65 S. Ct. 38, 89 L. Ed. 573. The petition for rehearing is denied in each of the above cases.