Opinion
No. 8702.
July 19, 1930.
Appeal from the District Court of the United States for the District of Minnesota; John B. Sanborn, Judge.
Action by the Chicago, Milwaukee St. Paul Railway Company against the Pioneer Grain Corporation. From an order allowing plaintiff's amendment to its reply and dismissing defendant's counterclaim, defendant appeals.
Appeal dismissed.
Harold G. Simpson, of Minneapolis, Minn., for appellant.
A.C. Erdall, of Minneapolis, Minn. (F.W. Root and C.O. Newcomb, both of Minneapolis, Minn., on the brief), for appellee.
Before KENYON, BOOTH and GARDNER, Circuit Judges.
An action was brought by the appellee railway company against the appellant, as defendant, to recover demurrage charges. The defendant answered, denying its liability. It also set up a counterclaim, alleging that plaintiff was liable in damages to it for a negligent breach of duty as a common carrier to furnish cars to defendant during the times referred to in the complaint. In its reply the plaintiff denied the counterclaim; later it moved to dismiss the same. This motion was denied (D.C.) 26 F.2d 90. Thereafter plaintiff moved to amend its reply, by inserting allegations that the court had no jurisdiction to hear the counterclaim; and it also renewed its motion to dismiss the same. From an order allowing plaintiff's amendment to its reply and dismissing defendant's counterclaim, the present appeal was taken.
In so far as the order allowed the amendment of the reply, it was discretionary, not a final order, and therefore not appealable. Economy, etc., Co. v. Killark, etc., Co., 235 F. 120 (C.C.A. 8); Stillwagon v. B. O.R. Co. (C.C.A.) 159 F. 97; J.W. Darling Co. v. Porter (C.C.A.) 256 F. 455; Pierce v. National Bank of Commerce, 282 F. 100 (C.C.A. 8).
In so far as the order dismissed the counterclaim, it was not a final order, and therefore not appealable. Winters v. Ethell, 132 U.S. 207, 10 S. Ct. 56, 33 L. Ed. 339; Emery v. Central Tr. Co. (C.C.A.) 204 F. 965, 968; Radio Corp. v. J.H. Bunnell Co. (C.C.A.) 298 F. 62; Dyar v. McCandless, 33 F.2d 578 (C.C.A. 8).
With certain exceptions, not here material, we have no jurisdiction to entertain appeals from interlocutory orders. 28 USCA § 225; Foster Fed. Prac. (6th Ed.) § 695; Rexford v. Brunswick-Balke Co., 228 U.S. 339, 33 S. Ct. 515, 57 L. Ed. 864; Morgan v. Thompson, 124 F. 203 (C.C.A. 8); Economy, etc., Co. v. Killark, etc., Co., supra; J.W. Darling Co. v. Porter, supra; Herrup v. Stoneham (C.C.A.) 15 F.2d 49; Dyar v. McCandless, supra; Guaranty Tr. Co. v. Albia Coal Co., 36 F.2d 34 (C.C.A. 8).
The appeal is accordingly dismissed; but as the appellee has argued only the points presented by the assignments of error, and has not moved to dismiss the appeal, no costs will be allowed.