323 F2d 716 Cimijotti v. Paulsen M

323 F.2d 716

Eberhard F. CIMIJOTTI, Appellant,
Frances PAULSEN, Clarice Sprout, Lauretta M. Cimijotti, Appellees.

No. 17444.

United States Court of Appeals Eighth Circuit.

Oct. 18, 1963.

Everett W. Gross, Helena, Mont., and Carroll E. Cutting, Decorah, Iowa, for appellant.

C. Frederick Beck, Mason City, Iowa, for appellees.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.



The appeal is from an order of the District Court overruling motions to require some witnesses to answer certain questions asked of them in depositions taken by the plaintiff (here appellant) for discovery purposes under Rule 26(a), Federal Rules of Civil Procedure, 28 U.S.C.A. The defendants (here appellees) have filed a motion to dismiss the appeal for want of a final order or judgment. The motion to dismiss is granted.


Rulings on the propriety or impropriety of incidents of depositiontaking under Rule 26 in a pending suit are not 'final decisions' within the general right of appeal provided by 28 U.S.C.A. 1291. Whatever practically may be their significance as a matter of discovery, they do not legally dispose of the issues of the case. Like other steps of preliminary progression, or like the incidents of a trial, they cannot be made the subject of review under 1291, except after and in relation to the terminating order or judgment in the case. Cf. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; Thomas French & Sons v. International Braid Co., 1 Cir.,146 F.2d 735; Dille v. Carter Oil Co., 10 Cir., 174 F.2d 318.


Appeal dismissed.