Malcom v. Dempsey — 59 Del. 174

Majority

p. 174

HOMER C. MALCOM, Plaintiff Below, Appellant, v. LOUISE H. DEMPSEY. Defendant Below, Appellee.

(December 3, 1965)

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

Julian D. Winslow, for plaintiff below, appellant.

George L. Sands and Carl W. Mortenson, for defendant below, appellee.

Supreme Court of the State of Delaware,

No. 73, 1965.

As may be seen from our prior decision reported at 209 A.2d 159 (1965), this case, a negligence action, was remanded to the Superior Court for new trial. It appears that, on the remand, the plaintiff attempted to obtain final disposition of the cause by summary judgment rather than by trial. The Superior Court denied the plaintiffs motion for summary judgment and ordered the case for trial.

The action of the Superior Court was correct because it was in conformity with the mandate of this Court. Moreover, the denial of summary judgment is not appealable because, as is generally the case, it neither adjudicated any legal right nor settled any substantial issue. Alexander Industries v. Hill, Del., 211 A.2d 917 (1965); Haveg Corporation et al. v. Guyer, Del., 211 A.2d 910 (1965).

The appeal is dismissed.