606 F.2d 62 (1979)
The employer appealed the denial of its Rule 59 motion and the order granting summary judgment in favor of the employee. The employer took the position that the appeal from the grant of summary judgment for the employee and the denial of its Rule 59 motion was an appeal from a final order.
- The court found that the notice of appeal was filed and the appeal was taken prior to the ascertainment of damages.
- Therefore it held that it was not a final order within the meaning of 28 U.S.C.S. § 1291. Further the court found that an interlocutory appeal had not been perfected as provided for in 28 U.S.C.S. § 1292(b).
- Thus, the court ruled that it was without jurisdiction to hear this appeal.
- A "final decision" generally was one that ended the litigation on the merits and left nothing for the district court to do but execute the judgment.
- The court determined that the district court found the employer liable but delayed awarding damages until a hearing was held to determine their existence and amount.
- The court concluded that there was obviously something else for the district court to do other than just executing the judgment.
The court affirmed the judgement of the district court that granted summary judgment in favor of the employee and denied the employer's motion to set aside its order.
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