*1 125 City, care; Jacobs, Martin York D. both of New exercising due plaintiff that the was my counsel), appellees. of for the it becomes that case and in view of the defendant.” duty verdict for to direct a SWAN, CLARK, PATTER- Before and exhibits testimony and Examination of the SON, Judges. Circuit a verdict was convinces us that directed proper. PER CURIAM. judgment is the District Court af- The of plaintiff’s complaint four The was in appellee. with costs to the firmed In counts. each count the effort was made charge joint with liabil- to the defendants ity. by dis- On motion the defendants to claim, miss for failure to state a the district court first counts ordered the and fourth Taplin dismissed to the and as defendants amend, Larsen the without leave to and first count dismissed as to the defendant Corporation North with American Coal appeal by plain- leave to The amend. is the tiff from of the order dismissal. ATWATER v. NORTH COAL AMERICAN CORPORATION al. et opinion appeal We are of that the may exceptions not be entertained. With No. 224. present importance, appellate of no our Appeals, Circuit Court of Second Circuit. jurisdiction is limited to of final the review April 8, 1940. 225, 28 decisions. U.S.C. Sec. 28 U.S.C.A. complaint by A of 225. dismissal a the § district court with leave to plaintiff to the amend not a final decision. Clark v. is City, 334, 207, Kansas 172 U.S. 19 S.Ct. 467; 43 L.Ed. v. Western Electric Co. Reproducer Corporation, Cir., Pacent 2 37 14, 15; Cory F.2d United Brothers v. States, Cir., 2 F.2d dis 47 607. So the missal of the first count as to defend the Company ant North American Coal with appealable. to is leave amend not toAs pending that defendant the action is still the court on all Dis in district counts. outright only missal affected two of the charged in three defendants common. The judg case within thus the rule that a falls dismissing ment or an as to order action jointly less than all several defendants of purpose charged is not a final decision for appeal. Hamburg-American of Hohorst v. Co., 262, 590, Packet 148 U.S. 13 S.Ct. 37 443; Smith, Bank of Rondout 156 L.Ed. v. 330, 441; 358, Menge U.S. 15 S.Ct. 39 L.Ed. Cir., 816; Warriner, 5 120 v. F. Hewitt v. Co., Cir., 2 22 McCormick Lumber F.2d 925; Leach, Cir., 296; Bush 2 22 v. F.2d Fields v. Mutual Benefit Life Insurance 559; Co., Cir., 4 F.2d Moss 93 v. Kansas Co., Cir., City 8 96 F.2d Life Insurance 108. The Collins v. situation in Metro-Gold- Corporation, Cir., 2 wyn Pictures F.2d 106 83, Henry Miller, City, was different. That was not case S. of New York for a appellant. dismissal touched where the but not some all defendants. Reavis, Hodges, Downey, Pantaleoni & Appeal City of York and dismissed. (C. New Frank Reavis *2 126

CLARK, Judge (concurring). Circuit appeal, dismissal the I concur in the of also but that the order below would add (b), finality Federal 54 lacked 28 under Rule 723c, following section because U.S.C.A. the legal it did not settle whatever claim parties might arising out of one trans have occurrence, re only or at most action but jected legal four two out of an asserted there Though to such claim. as theories were here, effect four stated counts in only legal ideas of these different were - recovery single one matter in as to the dis volved'. The district court’s action in missing trustees, against two the counts counts while the other two continuing amendment, against them was essential for futile, ly judgment after must trial since City Mahar, of York William New case, given according right be to of the the J. (Frederick Weinberg, New York E. of theory legal whether the correct has been City, appellant. counsel), of for presented not, 15(b) 54(c), or Rules and obtained and hence the defendants have nothing Cahill, Atty., of York T. U. S. New John partial by dis substance the of S. City (Noel Hemmendinger, U. Asst. rate, any missal below. At the new rules Atty., City, for counsel), of York of New legal differing make it clear that it is not theories, appellee. ' differing but trans occurrences or HAND, CHASE, and L. Before actions, separate form of which the basis CLARK, Judges. Circuit judicial 10(b), of action. Cf. Rules units 13(a) (g), 15(c), 54(b); 1- and Moore’s PER CURIAM. 145-147, Federal Practice 160-168. And only an and the This exclusion case is that, me, stated, it to I seems and as there question immigrant the is whether the was ground upon is the real which Collins v. son of citizen. He in a was born China Metro-Goldwyn Corp., Cir., Pictures 2 106 enter; and his first effort to was the this 86, 83, placed. F.2d is to be relator, putative father, concededly his was upon The as usual turned a citizen. result relator, paternity. of The the the issue father, well brother and his as relator’s himself, immigrant all that as the swore begotten son while the he was the relator’s in there of China and born relator was This Board refused Chinese mother. the a inconsistency the of to believe because of testimony what with the same witnesses the SHUE UNITED STATES ex CHIN rel. —except immigrant given the before. —had REIMER, v. Com’r of HONG after three earlier occasions The relator on Immigration. immigrant’s birth had declared under the No. 281. had, many children he and had oath how given a number too small to in- each time Appeals, Court Circuit. Circuit of Second immigrant. The relator’s brother clude the April 15, 1940. on one similar oc- and father had each thing. casion done the same why thought cannot see should be We it arbitrary accept or unreasonable not to the impeached. None word of witnesses so any effort to of them made reconcile their versions; two the relator of course knew had, many pre- children he and so

.how sumably his brother and father. The did