Silverstein v. Davis

PER CURIAM. Appellant was sued by appellee for the alleged balance due under a contract. Appellant answered, denying that appellee had performed the contract, and filed a counterclaim alleging that on two occasions appellee had slandered appellant and asking damages of $5,000 for each of the alleged slanders. On motion of appellee the trial court dismissed the counterclaim as being beyond the jurisdiction of the trial court. This appeal is from the order dismissing the counterclaim. Civil Rule 54 (b) of the trial court, which is substantially the same as Fed.Rules Civ.Proc. rule 54 (b), 28 U.S.C.A., provides : “Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, either as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form o'f decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” It is quite plain that the order appealed from adjudicated less than all the claims. In the absence of an express determination by the trial court that there is no just cause for delay and an express direction for entry of judgment, the order is not now appealable. Maizel v. Epstein, D.C.Cir., 196 F.2d 44; Roberts v. American Newspaper Guild, 88 U.S.App.D.C. 231, 188 F.2d 650; David v. District of Columbia, 88 U.S.App.D.C. 92, 187 F.2d 204; Winsor v. Daumit, 7 Cir., 179 F.2d 475. See also Vale v. Bonnett, 89 U.S.App.D.C. 116, 191 F.2d 334. , The record discloses no express determination by the trial court that there is no ■just reason for delay and no express direction for the entry of judgment. There is no final and appealable order. Appeal dismissed.