Robert T. Eaton, Doing Business as Eaton Construction v. National Steel Products Company, a Texas Corporation, Formerly Stran-Steel Corporation

After the jury returned its verdict, the district court, on timely motion of the defendant, ordered a new trial on grounds that the verdict was excessive, with the condition that if plaintiff accepted a remit-titur, judgment for the verdict less the re-mittitur would be entered. The plaintiff declined the remittitur and attempts to appeal to this court. Plaintiff also attempts to appeal a directed verdict entered against him on an antitrust claim.

An order granting a new trial, which may or may not be accompanied by a provision for remittitur, is an interlocutory order not appealable as a final judgment. Evans v. Calmar Steamship Co., 534 F.2d 519, 522 (2d Cir. 1976); DePinto v. Provident Security Life Insurance Co., 323 F.2d 826, 838 (9th Cir. 1963), cert. denied, 376 U.S. 950 , 84 S.Ct. 965 , 11 L.Ed.2d 969 (1964); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 254 , 61 S.Ct. 189 , 85 L.Ed. 147 (1940); C. Wright & A. Miller, Federal Practice and Procedure § 2818, at 116 (1973) ; J. Moore, Federal Practice 1 59.15[1] (1979). Though an exception to this rule has been recognized when the district court grants a new trial when it has no jurisdiction to do so, see, e. g., Stradley…