On Petition for Rehearing.
PER CURIAM.This ease was argued here on April 19, 1954. During the course of the argument the court pointed out that the judgment appealed from probably was not a final one within the purview of Section 1291, Title 28 U.S.C., a view which was adhered to when we filed our opinion on August 17 and an order dismissing the appeal was entered for want of jurisdiction. See Rule 54(b), Fed.Rules Civ.Proc. 28 U.S.C.
Counsel for the appellants stated when this court indicated that the appeal should be dismissed that he could procure an order from the court below in conformity with Rule 54(b), F.R.C.P. This court then unequivocally informed counsel that the court below was without jurisdiction to make such an order since the appeal was pending in this court. Thereafter, on May 24, disregarding our admonition, counsel for the appellants procured from the court below the following order: “And now, this 24 day of May, 1954, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, it is hereby determined that no reason exists for delay in the entry of judgment of dismissal as against Jay W. Kromer, defendant.” This order as a supplemental record was eventually certified to the Clerk of this court on August 30, 1954, some thirteen days after our opinion and order dismissing the appeal had been entered.
A petition for rehearing has now been filed by the appellants on the ground that the order originally appealed from is now an appealable one by reason of the order of the court of May 24, 1954. We reject this contention. The court below was without jurisdiction to enter the order of May 24, 1954 since the appeal was pending in this court and the court below was without jurisdiction to enter any order which would affect the status of the appeal. But even if jurisdiction had existed in the court below to enter the order we would deem it to have been improvidently entered. In the next to last sentence of our opinion filed August 17 we stated, “Indeed it is difficult to see how on the alleged opera*156tive facts the ends of justice would be served by the trial court treating the order appealed from as a final decision.” This was the equivalent of stating that the court below could not discreetly make “an express determination” that there was no just reason for delay. We state for the guidance of the court below that if suits such as that at bar which present no major issue or guiding principle are to be cut up and brought piecemeal before appellate tribunals Rule 54 (b) will not fulfill its function and continued disregard of the spirit of the Rule must inevitably lead to its modification or repeal.
The petition for rehearing will be denied.