Harry N. Baetjer v. Matilde Garzot Fernandez, 329 F.2d 798

Harry N. Baetjer v. Matilde Garzot Fernandez

329 F.2d 798

1st Cir.

1964

Check Treatment

PER CURIAM.

This is an appeal from an order of the United States District Court for the District of Puerto Rico appointing an appraiser to determine and report the increase in value of a dominant tenement as a result of railroad roadbeds on ap-pertinent rights of way over servient tenements, see the opinion of this court on a previous appeal in this protracted litigation, Baetjer v. Garzot, 136 F.2d 453 (C.A.1, 1943), and from the denial by the court below of a petition for reconsideration of that order. This court’s appellate jurisdiction is asserted under Title 28 U.S.C. § 1291 authorizing appeals to the courts of appeals from “final decisions” of the district courts of the United States. 1

“Finality as a condition of review is an historic characteristic of federal appellate procedure.” Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940). And in 1883 the Supreme Court stated the rule that a decision is final for the purposes of appeal “when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.” St. Louis, I. M. & S. R. R. v. Southern Express Co., 108 U.S. 24, 28-29, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883). This is the rule for the courts of appeals. Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 82 L.Ed. 204 (1937); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). This court, of course, adheres to the rule. See Parker v. United States, 153 F.2d 66, 69, 163 A.L.R. 379 (C.A.1, 1946). Indeed, in a comparable situation this court characterized a district court order determining liability but letting the case stand for determination of the amount thereof as an “obviously unappealable interlocutory order.” International Brotherhood, etc. v. W. L. Mead, Inc., 230 F.2d 576, 579 (C.A.1, 1956). See also Taylor v. Board of Education, etc., 288 F.2d 600, 602 (C.A.2, 1961), in which the court discussed the rule and said: “An order adjudging liability but-leaving the quantum of relief still to be determined has been a classic example *800 of non-finality and non-appealability from the time of Chief Justice Marshall to our own.”

An order will be entered dismissing this appeal for lack of appellate jurisdiction.

Notes

. Section 119 of Title 28 U.S.C. constitutes Puerto Rico one judicial district, § 132 (a), id., provides that in each judicial district there shall be a court of record known as the United States District Court for the district, § 1294(1), id., provides that appeals from reviewable decisions of the district courts shaE he taken, to the court of appeals for the circuit embracing the district, and § 41, id., places Puerto Rico in the First Circuit.