Summary
stating that in the civil context "a mistrial is not an appealable final judgment"
Summary of this case from Baylis v. Wal-Mart Stores, Inc.Opinion
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409.
October 26, 1971.
Darryl J. Tschirn, New Orleans, La., for plaintiff-appellant.
Thomas W. Thorne, Jr., Lemle, Kelleher, Kohlmeyer, Matthews Schumacher, Gothard J. Reck, New Orleans, La., for defendant-appellee.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Appellee's motion to dismiss this appeal for lack of jurisdiction is granted. The granting of a motion for a mistrial is not a final order which terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Gilmore v. United States, 5 Cir. 1959, 264 F.2d 44, 45. Finality is necessary to bring the order within our appellate jurisdiction under 28 U.S.C.A. § 1291.
Dismissed.