242 F2d 190 Lehrer v. McCloskey Homes

242 F.2d 190

Lewis LEHRER and Eleanor B. Lehrer, His Wife, Appellants,
v.
McCLOSKEY HOMES, Inc. and McCloskey & Co. of Florida.

No. 11954.

United States Court of Appeals Third Circuit.

Argued December 3, 1956.

Decided March 13, 1957.

Donald M. Bowman, Philadelphia, Pa., (Bernard J. Korman and Gold & Bowman, Philadelphia, Pa., on the brief), for appellants.

J. Dress Pannell, Harrisburg, Pa. (Lawrence D. Biele, Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and MARIS, Circuit Judge, and KRAFT, District Judge.

PER CURIAM.

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1

The plaintiffs-appellants have presented more than one claim for relief in their complaint, viz., a claim against McCloskey Homes, Inc., a Delaware corporation, and a claim against McCloskey & Co. of Florida, a Florida corporation. The order of the court below dismissing the complaint as to McCloskey Homes, Inc., did not constitute a final and appealable judgment under Rule 54(b), Fed.Rules Civ.Proc., 28 U.S.C., because the express determination that there was no just reason for delay and the express direction for the entry of judgment were not made by the court below as the rule requires. In so stating we desire to make plain that no application was made to the court below for judgment in the terms required by Rule 54(b). We are without power to entertain the appeal. See District 65 etc. v. McKague, 3 Cir., 1954, 216 F.2d 153 and Shipley Corp. v. Leonard Marcus Co., 3 Cir., 1954, 214 F. 2d 493.

2

Should the court below see fit to make the determination and the order required by Rule 54(b) and an appeal were then taken to this court, we could dispose of the appeal on its merits on the present record, enlarged by the determination and order referred to in the preceding paragraph, by submission to the present panel. Further oral argument would be obviated and time saved.

3

The appeal will be dismissed.