An action in interpleader was brought on June 16, 1953, by The Prudential Insurance Company, naming as defendants Bruce Guerin, as Executor of the Estate of Paul J. Guerin, deceased, here appellant, Alma Pauline Guerin, here appellee, and several other defendants. The complaint alleged that, pursuant to an application therefor, Prudential issued to Alma Guerin a Life Annuity Contract, wherein $246.00 was payable on April 15, 1952, and on the fifteenth day of each month thereafter until termination, to Alma Guerin, if living, and to others in event of her death. Payments were made to Alma Guerin up to and including January 15, 1953, when conflicting claims were made upon Prudential and payments were stopped. Prudential tendered $1,230.00, the amount due at the filing of the complaint, and offered to pay into court the future installments at the due date of each. Since Prudential claimed to be an indifferent stakeholder, it prayed defendants be required to in-terplead and each to answer the com plaint, that, upon payment of the money due and each installment into court, Prudential should be discharged of further liability with reference thereto “pending the future order of this Court with respect to the payment of future monthly annuity installments becoming due as above noted.” A provisional and permanent injunction was asked against other litigation by defendants and particularly an action by the executor then pending in the state court against Prudential, Alma Guerin and others.

It is further prayed: “That upon a final hearing herein that plaintiff be dismissed hence with its costs incurred, including a reasonable attorney’s fee, to be paid out of the interpleader funds.” There is a further prayer that an order to show cause issue to defendants to show why they should not interplead and why the injunction should not be granted and made permanent.

A separate answer and cross-complaint by Bruce Guerin, as Executor, was filed, which sets up affirmative allegations against Prudential and Alma Guerin to the effect that, to the knowledge of Prudential, the funds used to purchase the annuity were impressed with a trust in the hands of Alma Guerin. The basis for jurisdiction of this affirmative proceeding is diversity of citizenship. It is alleged that Bruce Guerin is a citizen of California, Prudential a corporation of New Jersey, and Alma Guerin a citizen of Arizona. Attached to the answer and cross-complaint is the second amended complaint in the state court, wherein Bruce Guerin, as Executor, is plaintiff, and Alma Guerin and Prudential are defendants, and wherein there is allegation of the fraudulent conversion of the money belonging to the estate and that Prudential knew or had reason to know thereof, and prays among other things that Prudential be declared to hold in trust the community property interest in and to the sum of $90,000.00, or the proceeds thereof, and “that defendants and each of them be ordered to deliver to the estate of Paul J. Guerin any and all properties or assets which the Court finds said defendants hold in trust for the benefit of the estate of Paul J. Guerin, deceased.”

A hearing was had upon the question of whether the preliminary injunction be made permanent, upon which the court ordered that defendants be enjoined pen-dente lite from commencing or prosecuting any action against Prudential except the action in the state court by Bruce Guerin, Executor, vs. Alma Guerin, above referred to. As a condition to the restraining order, Prudential was to pay into the registry the installments as these became due and to give bond therefor.

Pre-trial proceedings set for September 29, 1953, were placed off calendar subject to being reset. “All parties shall not be required to plead to any pleading until 20 days after written notice to do so.” Other items not disposed of were continued until further order.

An order was then entered in the following terms:

This order was noted upon the judgment docket October 27, 1953.

Alma Guerin then filed a motion to “apply one-half of the moneys heretofore paid in the Court herein” by Prudential to “payment of taxes on and payments upon encumbrances upon the real property owned by Alma P. Guerin” and “Release to this defendant Alma P. Guer-in the remaining one-half of said moneys” for “her necessary living expenses.”

The District Court allowed this motion by order docketed and entered February 24, 1955. The court expressly retained jurisdiction of the parties and the' cause.

Appeal was taken February 28, 1955, by Bruce Guerin, the Executor, to this Court. Since no supersedeas bond was filed, the District Court ordered immediate disbursement of funds in accordance with the order.

On June 22, 1955, counsel for Bruce Guerin, Executor, made a motion for termination of order disbursing moneys in accordance with the order of February-24, 1955, above noted. The court denied this latter motion by order dated July 11, 1955. This order was not signed by the judge and not docketed.

From the order last mentioned, notice of appeal was filed July 26, 1955, by Bruce Guerin, Executor, and presented with the appeal from the order of February 24, 1955.

Although deeply involved, Prudential did not appear on the appeals at all, but Alma Guerin, on the plea of lack of funds, appeared with a typewritten brief and oral argument of her counsel. Neither respondent suggests that the orders from which the appeals were taken were not final orders. This Court must necessarily give first consideration to this jurisdictional point, whether or not the parties raise it.

The first point made by the Executor is that the District Court had no jurisdiction to enter these two orders and that each was void. Assuming without deciding that an appeal would lie from a void order in the face of the language of the statute, there was here the power to hear and determine and therefore the District Court had jurisdiction. That court had all the necessary parties before it. There was a specific fund for adjudication. There were allegations in the answer of diversity of citizenship between all parties before this Court.

Plainly, these orders, the one which directed money to be paid out to Alma Guerin and the second refusing to rescind, were interlocutory and depended for their validity upon the entry of final judgment on all phases of the case. These do not fall in the classification of appealable interlocutory orders under the statute. 28 U.S.C.A. § 1292 .

No phase of this cause has been tried on the merits under the record before this Court. The Executor is apparently responsible for the delay. The order of the trial court was that neither of the adverse parties need answer the affirmative claim of Bruce Guerin, Executor, until twenty days after notice. The record shows no such notice. The pre-trial proceedings were set several times, taken off calendar and postponed. The Executor seems to have done nothing to force the case to issue on either pleading. Prudential has never answered the counterclaim and Alma Guerin has not answered.

It is assumed, although this Court does not presently decide, that after the case has been tried upon the merits all questions could have been adjudicated relating to whether the money was properly paid to Alma Guerin, whether Prudential, alleged to be deeply compromised with Alma Guerin, was entitled to inter-pleader, and whether the District Court was empowered to do more than decide upon the merits whether the Executor should obtain possession of the funds for administration as to the community interest of Alma Guerin in the probate court, or whether the District Court was empowered to administer the funds which were paid in the registry. Prudential is in the position of a defendant as far as the counterclaim is concerned, and no hearing has apparently been held upon the question of whether interpleader lies where the plaintiff has placed itself under dual liability. Also, there has been no order in this case from which appeal could have been taken under the terms of 54(b), Federal Rules of Civil Procedure.

The appeals from the orders of February 24, 1955, and July 11, 1955, are dismissed, but without prejudice.