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Kuhn v. Canteen Food Service Inc.

CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT.


June 28, 1945

KUHN ET AL.
v.
CANTEEN FOOD SERVICE, INC., ET AL.

Before EVANS, KERNER, and MINTON, Circuit Judges.

Per Curiam.

The plaintiffs are numerous and have filed suit against the Canteen Food Service, Inc., a corporation, the Dinsmore Associates, Inc., a corporation, and some individual defendants. The defendants have filed separate and several motions to strike the complaint and to dismiss the cause, or in the alternative to strike various portions of the complaint in the above-entitled cause and to require an election, and for a bill of particulars, and to require the plaintiffs to make the unstricken portions of the complaint definite and certain.

Among the several phases of this motion, the District Court sustained the motion of the individual defendants to strike from the complaint all reference to the individual defendants named therein and to dismiss the suit as to the individual defendants. The complaint was dismissed as to the individual defendants. The order does not say anything about leave to amend. The cause remained pending as to the corporations. From that portion of the order relating to the individual defendants the plaintiffs gave notice of appeal.

The individual defendants have filed a motion to dismiss the appeal for lack of jurisdiction on the ground that the order appealed from is not final. We agree.We have no jurisdiction to consider an appeal of this kind which is interlocutory only. 28 U.S.C.A. ยง 225; Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S. Ct. 590, 37 L. Ed. 443. The cases are not considered here piecemeal, and as a general rule are considered only upon such orders and judgments as are final and decisive of all the issues as to all the parties. Where all the parties are charged jointly and the cause remains pending as to some, the case is not final. Hohorst v. Hamburg-American Packet Co., supra; Hunteman v. New Orleans Public Service, 5 Cir., 119 F.2d 465; Atwater v. North American Coal Corporation, 111 F.2d 125; Hunter v. Federal Life Insurance Co., 8 Cir., 103 F.2d 192; Southland Industries v. Federal Communications Commission, 69 App.D.C. 82, 99 F.2d 117; Fields v. Mutual Benefit Life Insurance Co., 4 Cir., 93 F.2d 559; Lockhart v. New York Life Insurance Co., 4 Cir., 71 F.2d 684.

Since there was no final decision, we are without jurisdiction to consider this appeal, and the motion to dismiss is sustained.

19450628

© 1998 VersusLaw Inc.



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