202 F2d 425 Durkin v. Mason & Dixon Lines

202 F.2d 425

DURKIN, Secretary of Labor, U. S. Department of Labor,

v.

MASON & DIXON LINES, Inc.

No. 11667.

United States Court of Appeals Sixth Circuit.

February 18, 1953.

William S. Tyson, Sol., Bessie Margolin, Asst. Sol., Wm. A. Lowe, and David F. Babson, Jr., Attys., U. S. Dept. of Labor, Washington, D. C., and Paul H. Sanders, Reg. Atty., Nashville, Tenn., for appellant.

Clifford E. Sanders, Kingsport, Tenn., Penn, Hunter, Smith & Davis, Kingsport, Tenn., and Peter T. Beardsley, Washington, D. C., for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

PER CURIAM.

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1

This appeal, together with appellee's motion to dismiss the same, was heard upon the record, and briefs and oral argument of counsel for the respective parties;

2

And it appearing to the Court that the order of January 19, 1952 (1) dismissed the claim of appellant based on appellee's failure to pay overtime wages for workweeks prior to April 28, 1948, and (2) granted a recovery for the period between April 28, 1948 and May 18, 1950, the amount of said recovery to be determined thereafter in accordance with the stipulation between the parties previously filed therein, and that the only point presented by the present appeal is the alleged error of the Court in dismissing the claim of appellant based on appellee's failure to pay overtime wages for work-weeks prior to April 28, 1948, no question being raised with respect to the amounts of recovery thereafter determined for the period between April 28, 1948 and May 18, 1950;

3

And the Court being of the opinion that the order of January 19, 1952, settled all the equities between the parties and finally determined their rights, notwithstanding the provision for determining the amount of said recovery, and was accordingly a final order within the meaning of section 1291, Title 28, U.S.Code; Forgay v. Conrad, 6 How. 201 (U.S.) 12 L.Ed. 404; Gulf Refining Co. v. United States, 269 U.S. 125, 136, 46 S.Ct. 52, 70 L.Ed. 195; Delta Drilling Co. v. Arnett, 6 Cir., 186 F. 2d 481, certiorari denied 340 U.S. 954, 71 S.Ct. 574, 95 L.Ed. 688, rehearing denied 341 U.S. 917, 71 S.Ct. 735, 95 L.Ed. 1352; see Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 124-125, 65 S.Ct. 1475, 89 L.Ed. 2092, and cases cited in Annotation 3 A.L.R.2d 346, 360; And, it appearing from the record that the present appeal was not taken within the time provided by section 2107, Title 28, U.S.Code;

4

It is ordered that appellee's motion to dismiss the appeal is sustained. Delta Drilling Co. v. Arnett, supra, 186 F.2d at page 484.