307 F.2d 796 (9th Cir. 1962), 17714, Harmon v. Superior Court of State of Cal. In and For Los Angeles County

Docket Nº:17714.
Citation:307 F.2d 796
Party Name:Francis L. HARMON, Appellant, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, IN AND FOR the COUNTY OF LOS ANGELES; Emer D. Doyle; Roger A. Pfaff; John J. Ford; Clement L. Shinn; Paul Vallee; Parker Wood; Stanley Mosk; Norman L. Epstein; William B. McKesson; Harold O. Pressman; Harold J. Ostly, as Clerk of the Superior Court; Peter J. Pitchess, a
Case Date:September 11, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 796

307 F.2d 796 (9th Cir. 1962)

Francis L. HARMON, Appellant,

v.

The SUPERIOR COURT OF the STATE OF CALIFORNIA, IN AND FOR the COUNTY OF LOS ANGELES; Emer D. Doyle; Roger A. Pfaff; John J. Ford; Clement L. Shinn; Paul Vallee; Parker Wood; Stanley Mosk; Norman L. Epstein; William B. McKesson; Harold O. Pressman; Harold J. Ostly, as Clerk of the Superior Court; Peter J. Pitchess, as Los Angeles County Sheriff; Karl Holton, as Los Angeles County Probation Officer and Court Trustee; Roscoe Hollinger, as Los Angeles County Auditor; and Howard L. Byram, as Los Angeles County Treasurer, Appellees.

No. 17714.

United States Court of Appeals, Ninth Circuit.

Sept. 11, 1962

Page 797

Francis L. Harmon, in pro. per., for appellant.

Stanley Mosk, Atty. Gen. of Cal., and Joan D. Gross, Deputy Atty. Gen., Los Angeles, Cal., for appellees, John J. Ford, Clement L. Shinn, Paul Vallee, Parker Wood, Stanley Mosk, and Norman L. Epstein.

Harold W. Kennedy, County Counsel, County of Los Angeles, and Robert C. Lynch, Deputy County Counsel, Los Angeles, Cal., for remaining appellees.

Before CHAMBERS and DUNIWAY, Circuit Judges, and TAVARES, District judge.

DUNIWAY, Circuit Judge.

This is the second time in recent months that we have had before us an appeal from a judgment of dismissal made by a District Judge of the Southern District of California on his own motion and before service of process upon any defendant. (See Addison v. The Grand Lodge of International Association of Machinists, 9 Cir., 1962, 300 F.2d 863). The dismissal here was by a different judge. It reads as follows:

'It appearing to the court from an inspection of the complaint that the complaint fails to state a claim over which this court has jurisdiction,

'IT IS ORDERED that the complaint be and hereby is dismissed for want of jurisdiction.'

The District Court always has power to dismiss for lack of jurisdiction. It can do so at any time that such lack appears, and on its own motion. (See Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 588, 59 S.Ct. 744, 83 L.Ed. 1001; Rule 12(h), F.R.Civ.P., 28 U.S.C.) But it cannot dismiss for lack of jurisdiction, without giving the plaintiff an opportunity to be heard, unless such lack appears on the face of the complaint and is obviously not curable. This is not such a case.

The complaint asserts jurisdiction under 28 U.S.C. §...

To continue reading

FREE SIGN UP