City and County of San Francisco v. McLaughlin

Decision Date14 December 1925
Docket NumberNo. 4642.,4642.
PartiesCITY AND COUNTY OF SAN FRANCISCO v. McLAUGHLIN, Collector of Internal Revenue, et al.
CourtU.S. Court of Appeals — Ninth Circuit

George Lull, City Atty., of San Francisco, Cal. (E. J. Mitchell, Asst. City Atty., of counsel), for appellant.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellees.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge.

This is an appeal from an order granting a motion to dismiss a bill in equity. The appellee has directed our attention to the nature of the order, but no motion to dismiss the appeal has been interposed, nor has any question been raised as to the jurisdiction of this court. If the order is not appealable, however, it is the duty of the court to raise the objection of its own motion. Section 128 of the Judicial Code (Comp. St. § 1120) provides that the Circuit Courts of Appeals shall exercise appellate jurisdiction to review, by appeal or writ of error, final decisions in the District Courts in all cases other than those in which appeals and writs of errors may be taken direct to the Supreme Court. Unless the decision of the court below is a final one, therefore, this court is without jurisdiction to review it, and it would seem manifest from a bare inspection of the record that it is not.

Equity rule 29 abolishes demurrers and pleas, and provides that every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss, or in the answer. The mere granting of a motion to dismiss under this rule, unless followed by a final decree, amounts to nothing more than a determination on the part of the court that the bill is open to one or more of the objections urged against it, and the order on the motion is not final, any more than is an order sustaining a demurrer to a complaint in an action at law. In either case the suit or action is still pending, and must be determined by final decree or judgment before this court can acquire jurisdiction by appeal or writ of error. Schendel v. McGee (C. C. A.) 300 F. 273, 277; Pierce v. National Bank of Commerce (C. C. A.) 282 F. 100; G. Amsinck & Co. v. Springfield Grocer Co. (C. C. A.) 7 F.(2d) 855.

Counsel for the appellant seems to have labored...

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12 cases
  • United States v. State of Arizona
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 30, 1953
    ...had the same erroneous concept that such an order is appealable as the fourteen attorneys in our case of City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390, and our thirteen succeeding The second proceeding was initiated sua sponte by the court. It concerned the dismissal of......
  • Crockett v. United States, 9894.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 16, 1942
    ...have jurisdiction of the appeal. Though not raised by the parties, the question is here and has to be decided. City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390; Credit Bureau of San Diego v. Petrasich, 9 Cir., 97 F.2d 65, By § 128(a) of the Judicial Code, 28 U.S.C.A. § 225......
  • In re Forstner Chain Corporation
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 10, 1949
    ...motion to dismiss an action is not a final decision and is not appealable." The reason is, as pointed out in City and County of San Francisco v. McLaughlin, 9 Cir., 1925, 9 F.2d 390, that the mere granting of a motion to dismiss amounts to no more than a determination on the part of the cou......
  • Leonard v. Socony-Vacuum Oil Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 19, 1942
    ...court for final determination by final judgment before jurisdiction can be conferred upon the court of review. City & County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390; Darling Lumber Co. v. Porter, 5 Cir., 256 F. 455; Missouri & Kansas Interurban R. Co. v. City of Olathe, Kan., 222......
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