531 F2d 942 Laclede Gas Company v. Amoco Oil Company

531 F.2d 942

LACLEDE GAS COMPANY, d/b/a Midwest Missouri Gas Company, Appellant,

No. 75--1963.

United States Court of Appeals,
Eighth Circuit.

Submitted March 22, 1976.
Decided March 31, 1976.

Morris E. Stokes, Paul B. Hunker, Jr., St. Louis, Mo., for appellant.

Richmond C. Coburn and Joseph A. Kral, St. Louis, Mo., and Robert D. Mitchell, Chicago, Ill., for appellee.

Before LAY, STEPHENSON and WEBSTER, Circuit Judges.


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This is Laclede's third appeal in this ongoing diversity action for breach of contract. Laclede now appeals from a decree of specific performance entered by the district court1 on Count I of its suit for breach of contract after reversal and remand by this court in Laclede Gas Company, d/b/a Midwest Gas Company v. Amoco Oil Company, 522 F.2d 33 (8th Cir. 1975). We dismiss this appeal for lack of jurisdiction2 upon the grounds that the decree of specific performance is not a final decision for purposes of 28 U.S.C. § 1291. There remains outstanding Laclede's claim for damages under Count II of its complaint. See Laclede Gas Company, d/b/a Midwest Missouri Gas Company v. Amoco Oil Company, 522 F.2d 41 (8th Cir. 1975).


The order for specific performance is not one which 'ends the litigation and leaves nothing for the court to do but execute the judgment.' Wrist-Rocket Mfg. Co., Inc. v. Saunders Archery Co., 516 F.2d 846, 849 (8th Cir. 1975); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911, 915 (1945).


Reversed and remanded accordingly.


The Honorable H. Kenneth Wangelin, United States District Judge for the Eastern District of Missouri


See Local Rule 9