WRIGHT v. TAFT-PEIRCE MFG. CO., 287 F. 131

BINGHAM, Circuit Judge. This is an action at law for breach of a contract to manufacture certain machines and- tools with which to make the machines. There was a trial by jury in the District Court for the District of Rhode Island and a verdict found for the plaintiff in the sum of $23,901.31.

The defendant filed a motion for a new trial, and, after hearing the parties, the District Court ruled, as a matter of law, that the defendant was entitled to suspend work on the machines as the plaintiff had failed to pay certain invoices for tools when due (the contract giving the defendant the right to stop work at any time if any payment stipulated for was not made promptly as agreed), and granted the motion. Thereupon the plaintiff brought his writ of error to this court. The case is now before us on the defendant’s motion to dismiss for want of jurisdiction.

In the Judicial Code, § 128, as amended January 28, 1915, 38 Stat. at Large, c. 22, § 2, p. 803 (Comp. St. § 1120), the jurisdiction of Circuit Courts of Appeals to review decisions of District Courts is stated as follows: “The Circuit Courts of Appeals shall 'exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Courts, » * * in all cases other than those in which appeals and writs of error may be taken direct to the Supreme Court,” etc.

The words “final decision” as used in this statute and statutes of similar import have from an early day been held to mean a final judgment, one disposing of the entire controversy between the parties. Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697, 28 L. Ed. 602; Brush Electric Co. v. Electric Improvement Co., 51 Fed. 557, 560, 2 C. C. A. 373; Cassatt v. Mitchell Coal & Coke Co., 150 Fed. 32, 34, 81 C. C. A. 80, 10 L. R. A. (N. S.) 99; McCargo v. Chapman, 20 How. 555, 15 L. Ed. 1021; Luxton v. North River Bridge Co., 147 U. S. 337, 13 Sup. Ct. 356, 37 L. Ed. 194; McLish v. Roff, 141 U. S. 661, 12 Sup.

Ct. 118, 35 L. Ed. 893; National Life Ins. Co. v. Scheffer, 131 U. S. Appendix, cciii, 26 L. Ed. 1110; Green v. Van Buskirk, 3 Wall. 448, 18 L. Ed. 245; Union Mutual Life Ins. Co. v. Kirchoff, 160 U. S. 374, 16 Sup. Ct. 318, 40 L. Ed. 461; La Bourgogne, 210 U. S. 95, 112, 113, 28 Sup. Ct. 664, 52 L. Ed. 973. In this case there was no final decision or judgment in the District Court which could be reviewed on writ of error here. The order granting a new trial did not dispose of the case, but left it open to the plaintiff, if he desired, to retry his case before a jury.

However desirable it might be to vest District Courts with discretionary authority to certify questions of law to Circuit Courts of Appeals for determination either before or after trial, Congress has never seen fit to grant such power. ‘ Much less has it seen fit to grant litigants the right to have reviewed on writ of error an order which is not a final disposition of a cause; and it is hardly probable that it ever will grant such power as of right to a litigant, as to do so would give rise to undue confusion and delay. The case is dismissed for want of jurisdiction, with costs to the defendant in error.