Opinion
No. 5065.
July 11, 1933.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Action by Martin J. Denial against the East Erie Commercial Railroad Company. A new trial having been granted, defendant appeals.
Appeal dismissed, and cause remanded.
J.M. Sherwin and W.S. Carroll, both of Erie, Pa., for appellant.
Homer H. Marshman and Anderson Lamb, all of Cleveland, Ohio, and S.A. Sisson, of Erie, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
In the final analysis, this is an appeal from an order of the court below granting a new trial. The trial judge felt he had tried the case under a mistaken view of a Supreme Court decision and therefore felt constrained to grant a new trial. See Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S. Ct. 252, 77 L. Ed. 439. It is thus seen there is no final judgment from which an appeal lies. Consequently it is dismissed, and the cause remanded for due procedure.