Joseph F. Hughes & Co. v. United Plumbing & Heating, Inc.

Decision Date18 March 1968
Docket NumberNo. 18260.,18260.
Citation390 F.2d 629
PartiesJOSEPH F. HUGHES & COMPANY, Inc., Plaintiff-Appellee, v. UNITED PLUMBING & HEATING, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas B. Talbot, John T. Ducker, Talbot, Jennings & Ducker, Dayton, Ohio, for appellant.

Richard L. Steinberger, Pickrel, Schaeffer & Ebeling, Dayton, Ohio, for appellee.

Before CELEBREZZE, McCREE and COMBS, Circuit Judges.

PER CURIAM.

Appellee obtained a judgment against the Appellant in the United States District Court for the District of Columbia and caused a certified copy of the judgment to be registered with the United States District Court for the Southern District of Ohio. On the basis of the registered judgment the District Court for the Southern District of Ohio issued an order in aid of execution requiring the District Director of the Internal Revenue Service at Cincinnati, Ohio, to "* * * hold any and all monies it may determine should be refunded to the Appellant."

Upon receiving notice of the "hold" order, the Appellant moved the Court to vacate the order "* * * for the reason that said order violates the well-established legal concept of sovereign immunity." The Internal Revenue Service, however, recognized the "hold" order and pursuant to a subsequent order of the Court deposited into Court two refund checks due to the Appellant. The District Court denied the motion to vacate, and the Appellant perfected an appeal. The Appellee has now filed a motion with this Court to dismiss the appeal on any one of three grounds: (1) that the case is moot since the Internal Revenue Service has paid the refund checks into Court, (2) that the judgment of the District Court is not final, and (3) that the Appellant has no standing to raise the defense of sovereign immunity. We deny the motion so far as it is based upon the mootness and lack of finality of the District Court's order; the question of standing is passed to be briefed and argued on appeal.

The "hold" order in question is to remain in effect "until further order by the District Court * * *." No order has been entered vacating the "hold" order; and the checks paid into Court by the Internal Revenue Service were paid pursuant to an order subsequent to the "hold" order. Compliance with the subsequent order does not render moot this controversy concerning the legality of the still outstanding "hold" order.

We also find that the order of the District Court denying the motion to vacate is sufficiently final for appeal. In Sabadash v. Schavo, 128 F.2d 923 (6th Cir. 1942), this Court held that an order denying a petition to recall and perpetually stay execution upon a judgment was not appealable. The petition in that case was based on the claim that the judgment had been discharged by virtue of the petitioner's subsequent discharge in bankruptcy. No property of the petitioner had been levied upon; so in essence the petitioner was seeking an advisory opinion. Here specific property, tax refunds due or to be due to the judgment debtor, has been garnisheed; and the judgment debtor is contesting the Court's power to levy upon the specific property in question. In a like circumstance this Court has entertained an...

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6 cases
  • Crane v. Crane
    • United States
    • D.C. Court of Appeals
    • April 27, 1995
    ...rule of finality is aimed, is not as decisive a consideration after judgment as before judgment." Joseph F. Hughes & Co. v. United Plumbing & Heating, Inc., 390 F.2d 629, 630 (6th Cir.1968); accord Plymouth Mutual Life Ins. Co. v. Illinois Mid-Continent Life Ins. Co., 378 F.2d 389, 391 (3d ......
  • Miller v. Alamo
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • September 21, 1992
    ...F.2d 1404, 1406 (9th Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); Joseph & Hughes Co. v. United Plumbing & Heating, Inc., 390 F.2d 629, 630 (6th Cir.1968). One reason is that the underlying dispute has already been settled, and there is little danger that pr......
  • Brockelman v. Brockelman
    • United States
    • U.S. District Court — District of Kansas
    • July 24, 1979
    ...Overman v. United States, 563 F.2d 1287 (8th Cir. 1977). Plaintiffs place reliance on the case of Joseph F. Hughes & Co. v. United Plumbing & Heating Co., 390 F.2d 629 (6th Cir. 1968). There, however, the Director of the I.R.S. voluntarily paid into the Court the refund which plaintiffs wer......
  • U.S. v. State of Wash., 84-3571
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 28, 1985
    ...C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, Sec. 3916 at 606 (1976); Joseph F. Hughes & Co. v. United Plumbing and Heating, Inc., 390 F.2d 629, 630 (6th Cir.1968) (per curiam); cf. Kittitas Reclamation District v. Sunnyside Valley Irrigation District, 626 F.2d 95 (9th......
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