201 F.2d 195 (D.C. Cir. 1952), 11265, Pang-Tsu Mow v. Republic of China

Docket Nº:11265, 11392.
Citation:201 F.2d 195
Party Name:PANG-TSU MOW et al. v. REPUBLIC OF CHINA (two cases).
Case Date:November 20, 1952
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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201 F.2d 195 (D.C. Cir. 1952)



REPUBLIC OF CHINA (two cases).

Nos. 11265, 11392.

United States Court of Appeals, District of Columbia Circuit.

November 20, 1952

Argued Oct. 7, 1952.

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Mr. William A. Roberts, Washington, D.C., with whom Messrs. Warren Woods, Edward G. Villalon and Mrs. Irene Kennedy, Washington, D.C., were on the brief, for appellants.

Mr. William E. Leahy, Washington, D.C., with whom Mr. William J. Hughes, Jr., Washington, D.C., was on the brief, for appellees.

Before PRETTYMAN, PROCTOR and FAHY, Circuit Judges.

FAHY, Circuit Judge.

These appeals, consolidated for hearing, are from orders of the District Court entered in a single suit brought by the Republic of China, plaintiff and appellee, against Mow and Hsiang, defendants and appellants. Defendants are alleged to be citizens of the Republic of China temporarily residing in the District and to have been agents of plaintiff in the direction of the 'Chinese Air Force Office in U.S.A.' The complaint alleges that defendants in the management of the Office shared control over considerable funds entrusted by plaintiff to Mow for purchases for the Chinese Air Force, for the development of the aeronautical industry in the Republic of China, and as a revolving fund for administrative and other authorized payments. The funds are stated to have aggregated some $49,000,000. The complaint sets forth that it was defendants' duty to expend plaintiff's property for purposes it authorized, the balance to be returned on demand, to make periodic accounts, and to keep proper books. Defendants are alleged to have violated these duties by presenting purported accounts covering some $24,000,000 unsupported by vouchers and inadequate in other respects. It is said further that defendants were notified the Office had been abolished and were ordered to pay over and transfer to a new governmental agency the Office funds and records, which they refused to do, and that Mow was also ordered to turn over all government funds under his control and all relevant records to the Chinese Ambassador to the United States and another named official, which he also refused to do. Finally it is alleged that the unexpended portion of the funds remaining in the possession and under the control of either or both defendants, stated to amount to more than $7,000,000, has been

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and is being concealed and withheld from plaintiff by defendants and used by them for unauthorized expenses. To avoid irreparable and immediate injury plaintiff prayed injunctive relief to protect, in various stated manners, its funds, properties and records and to require delivery of its moneys and properties to plaintiff. An accounting and final decree for surrender to plaintiff of said moneys, properties, books and papers were also prayed. The complaint was sworn to by the Vice-Minister of Justice of the Republic of China, who also made a detailed affidavit in aid of the motion for preliminary injunction.

The appeal in No. 11265 is from an order of the District Court of December 10, 1951, which overruled defendants' motion to dismiss the complaint, granted a preliminary injunction, and continued in effect, subject to future modifications, an order designating a disinterested person to take possession of the premises of the Air Force Office.

I. The order overruling the motion to dismiss is not final and so is not appealable under 28 U.S.C. § 1291 (Supp. v, 1952). 1 Toomey v. Toomey, 1945, 80 U.S.App.D.C. 77, 149 F.2d 19. Nor is the order continuing the appointment of a custodian final within that provision. We therefore do not have jurisdiction of these orders unless they fall within 28 U.S.C. § 1292 (Supp. V, 1952). 2 Clearly they are not among the type of interlocutory or other orders enumerated in that section. Furthermore, the District Court has not made the direction and determination required by Rule 54(b), Fed.R.Civ.P. 3 , as a prerequisite to appealability in a multiple claim case such as this when less than all claims have gone to judgment at the time of appeal. See David v. District of Columbia, 1950, 88 U.S.App.D.C. 92, 187 F.2d 204. Therefore, insofar as the appeal is from the overruling of defendants' motion to dismiss the complaint and continuing in effect the order appointing a custodian, it must be dismissed.

II. The appeal from the interlocutory order granting a preliminary injunction (D.D.C., 1951, 101 F.Supp. 646), however, is within our jurisdiction under 28 U.S.C. § 1292, n. 2, supra. This statute explicitly authorizes an appeal from such an interlocutory order, and we do not think a determination and direction under Rule 54(b) is a condition thereto even though the suit involves multiple claims. The Rule is designed to preclude appeal until there is finality. The statutory provision for appeal from an interlocutory order involving an injunction is an exception to the necessity for finality. Reconciliation of the Rule with the statute requires that the former be not construed so as to supplant the exception. Furthermore, in Sibbach v. Wilson & Co., 1941, 312 U.S. 1, 10, 61 S.Ct. 422, 85 L.Ed. 479, rehearing denied, 312 U.S. 655, 61 S.Ct. 422, 85 L.Ed. 479,

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the Court, citing and construing 48 Stat. 1064 (1934), 28 U.S.C. § 723b (1946)...

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