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Aubertin v. State Farm Mutual Auto. Ins. Co.

United States Court of Appeals, Fifth Circuit
Feb 14, 1958
252 F.2d 96 (5th Cir. 1958)

Opinion

No. 16933.

February 14, 1958.

Gordon M. White, Baton Rouge, La., for appellant.

Horace C. Lane, Baton Rouge, La., for appellee.

Before JONES, BROWN and WISDOM, Circuit Judges.


This is an appeal from an order of the Trial Court entered June 29, 1957, vacating and setting aside the verdict and judgment for Aubertin and granting a new trial. The reason for this action by the Court below as stated in that order was that the verdict as rendered for $8,166.67 was manifestly a quotient verdict there being no items of special damage which could in any way support such a figure.

Appeal from such an order is premature and cannot be maintained. The appeal must be based on a final judgment below. 28 U.S.C.A. §§ 1291, 1292; Milprint, Inc., v. Donaldson Chocolate Co., 8 Cir., 222 F.2d 898, 902; Bass v. Baltimore O. Terminal R. Co., 7 Cir., 142 F.2d 779; 6 Moore, Federal Practice #59.09 [4], 59.15 [1]; 7 Id. #73.09 [4]. There is no such judgment here. This is not a case in which a motion for new trial has been denied thus leaving intact the final judgment entered. See e.g., Texas N.O.R. Co. v. Underhill, 5 Cir., 234 F.2d 620; Ft. Worth Denver Ry. Co. v. Roach, 5 Cir., 219 F.2d 351. Instead, the judgment below has been vacated leaving no basis for our review.

The review of the asserted error must await the second trial and appeal from that judgment. Finn v. American Fire Casualty Co., 5 Cir., 207 F.2d 113; Marshall's U.S. Auto Supply, Inc., v. Cashman, 10 Cir., 111 F.2d 141.

Appeal dismissed.


Summaries of

Aubertin v. State Farm Mutual Auto. Ins. Co.

United States Court of Appeals, Fifth Circuit
Feb 14, 1958
252 F.2d 96 (5th Cir. 1958)
Case details for

Aubertin v. State Farm Mutual Auto. Ins. Co.

Case Details

Full title:Julian A. AUBERTIN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 14, 1958

Citations

252 F.2d 96 (5th Cir. 1958)

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