Skelly Oil Company, a Corporation, Appellant, v. Albert Zimmerman and Alberta Zimmerman, Partners, D/b/a Sinclair Rexall Drugs, a Partnership, and Milton Brown, Appellees, 332 F.2d 618 (10th Cir. 1964)

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US Court of Appeals for the Tenth Circuit - 332 F.2d 618 (10th Cir. 1964) June 4, 1964

Herbert A. Marshall, Topeka, Kan. (Allen Meyers and Doral H. Hawks, Topeka, Kan., on the brief) for appellant.

C. K. Sayler, Topeka, Kan. (David H. Fisher, Donald Patterson, Jack L. Summers, Charles S. Fisher, Jr., Topeka, Kan., and Robert Reeder, Troy, Kan., on the brief) for appellees.

Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges.


The Insurance Company brought this action against the Zimmermans to recover, as subrogee, the amount it had paid under a fire insurance policy issued by it to Myrtle W. and Forrest H. Hagenbuck, on account of a fire loss suffered by them, alleging the fire was caused solely by the negligent acts of the Zimmermans. The Zimmermans filed a third party complaint against Skelly Oil Company.

From an order denying Skelly's motion to dismiss the third party complaint, Skelly has sought to appeal.

Such order was clearly interlocutory and not a final order. It does not fall within any of the categories of interlocutory orders made appealable by 28 U.S.C.A. § 1292(a) and no effort was made to comply with 28 U.S.C.A. § 1292 (b), nor did the court direct the entry of a final judgment, under Rule 54(b), Fed.Rules Civ.Proc.

The appeal is dismissed without prejudice.