Circuit Court of Appeals, Tenth Circuit.
Sherman A. Sutliff and Kenaz Huffman, both of Denver, Colo. (Frank E. Gove and Luke J. Kavanaugh, both of Denver, Colo., on the brief), for appellant.
Richard A. Toomey, Atty., Veterans' Administration, of Denver, Colo. (Ralph L. Carr, U. S. Atty., and John G. Reid, Asst. U. S. Atty., both of Denver, Colo., and Wm. W. Smith, Sp. Counsel, Veterans' Administration, and Bayless L. Guffy, Atty., Veterans' Administration, both of Washington, D. C., on the brief), for the United States.
Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.
PHILLIPS, Circuit Judge.
This is an action to recover on a policy of war risk insurance. Upon the trial there was a verdict for plaintiff. Whereupon defendant filed a motion for a new trial. The court sustained such motion, and entered an order setting aside the verdict and granting defendant a new trial. Plaintiff has undertaken to appeal from such order. The cause now stands in the District Court with the issues undisposed of, as if it had never been tried.
Except in patent suits and proceedings for injunctions and the appointment of receivers, where it has jurisdiction to review certain interlocutory orders or decrees, the jurisdiction of the Circuit Court of Appeals upon appeal is limited to the review of final decisions of District Courts. Sections 225, 227 and 227a, Title 28 USCA.
A final decision is one that disposes of the entire controversy between the parties. Wright v. Taft-Peirce Mfg. Co. (C. C. A. 1) 287 F. 131; Todd Engineering, D. D. & R. Co. v. United States (C. C. A. 5) 32 F.(2d) 734, 735; La Bourgogne, 210 U.S. 95, 112, 28 S. Ct. 664, 52 L. Ed. 973.
An order setting aside a verdict and granting a motion for a new trial is not a final decision, and an appeal does not lie therefrom. Ft. Dodge Portland Cement Corp. v. Monk (C. C. A. 8) 276 F. 113; Clement v. Wilson (C. C. A. 2) 135 F. 749; Wright v. Taft-Peirce Mfg. Co., supra; Dry Dock, E. B. & B. R. Co. v. Petkunas (C. C. A. 2) 261 F. 988; Sentinel Co. v. Dinwiddie (C. C. A. 7) 41 F. *334 (2d) 57; Hume v. Bowie, 148 U.S. 245, 13 S. Ct. 582, 37 L. Ed. 438.
The appeal is therefore dismissed.
