Opinion
No. 13829.
August 19, 1959.
Alexander, Cholette, Buchanan, Perkins Conklin, Grand Rapids, Mich., for appellant.
Mitts, Smith, Haughey Packard, Grand Rapids, Mich., for appellee.
Before ALLEN, MILLER and CECIL, Circuit Judges.
The District Judge overruled appellant's motion to dismiss the complaint or in the alternative to quash service of process, from which order this appeal was taken.
Said order is not a final decision from which an appeal will lie. Sec. 1291, Title 28 U.S.Code; Metalock Repair Service v. Harman, 6 Cir., 234 F.2d 490; Chereton v. United States, 6 Cir., 256 F.2d 576. See Robinson v. Bankers Life Casualty Co., 6 Cir., 226 F.2d 834.
In entering the order the District Judge did not state therein in writing that he was of the opinion that such order involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation, which is a necessary element in order for an appeal to lie under the provisions of Sec. 1292(b), Title 28 U.S.Code. Milbert v. Bison Laboratories and the B. O.R. Co., 3 Cir., 260 F.2d 431, 435; Biggers v. Bankers Bond Co., D.C.W.D.Ky., 171 F. Supp. 94.
Appellee's motion to dismiss the appeal is sustained, at the cost of appellant.