252 F2d 96 Aubertin v. State Farm Mutual Automobile Insurance Co

252 F.2d 96

Julian A. AUBERTIN, Appellant,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee.

No. 16933.

United States Court of Appeals Fifth Circuit.

Feb. 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.

PER CURIAM.

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1

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.

2

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.

3

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.

4

Appeal dismissed.