Fleming v. Borders

Decision Date15 December 1947
Docket NumberNo. 11672-11678.,No. 11670,11670,11672-11678.
PartiesFLEMING v. BORDERS et al.
CourtU.S. Court of Appeals — Ninth Circuit

165 F.2d 101 (1947)

BORDERS et al.

Nos. 11670, Nos. 11672-11678.

Circuit Court of Appeals, Ninth Circuit.

December 15, 1947.

Ed Dupree, Acting General Counsel, Hugo V. Prucha, Chief Litigation Unit, Irving M. Gruber, Chief Appellate Atty., and Nathan Siegel, Sp. Appellate Atty., Office of Housing Expediter, all of Washington, D. C., for appellant.

No appearances for appellees.

Before DENMAN, BONE and ORR, Circuit Judges.

DENMAN, Circuit Judge.

Each of these cases was brought below by Philip B. Fleming, Administer of the Office of Price Administration, for injunctions against violations of the Housing Rent Regulations under the Emergency Price Control Act of 1942, as amended, 50 U.S.C. A. Appendix, § 901 et seq., for recovery of rents over-collected and for treble damages. In one of them a motion for dismissal was filed on the ground, inter alia, that the plaintiff had no legal capacity to sue.

In the case of Fleming, Administrator, etc., v. Findlay and Lenske, brought in the district court below for similar rent regulation violations, the district judge on February 15, 1947, filed his opinion stating, "I am dismissing this case which is one of several that have recently been filed so that the authority of General Fleming can be tested in an appellate court, if that is OPA's wish," and giving as the ground of dismissal that Fleming's appointment as such administrator had not been confirmed by the Senate and hence he had no power to sue for the alleged violations.

In the Findlay and Lenske case judgment of dismissal was entered on February 26, 1947. It was followed by judgments of dismissal in these other cases, five of them by the court sua sponte, on March 6, 1947. On March 17, 1947, Fleming appealed in the Findlay and Lenske case, an appeal this day decided reversing the judgment. Fleming v. Findlay, 9 Cir., 165 F.2d 79.

On April 28, 1947, the Supreme Court decided the case of Fleming v. Mohawk Co., 331 U.S. 111, 67 S.Ct. 1129. On May 16, 1947, Fleming, in each of the eight cases here on appeal, moved "the Court to vacate the judgment and dismissal in the above case and to reinstate the case on the docket," and in his points and authorities quoted some six pages of the Supreme Court's opinion in the Mohawk

165 F.2d 102
case. On May 22, 1947, the court entered its orders continuing the hearings of the motions in each case, as follows: "Now at this day It is Ordered that the hearing on the motion of the plaintiff to vacate...

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5 cases
  • Napier v. Delaware, Lackawanna and Western R. Co., 270
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Mayo 1955
    ...65 S.Ct. 254, 89 L.Ed. 160; Healy v. Pennsylvania R. Co., 3 Cir., 181 F.2d 934; Green v. Reading Co., 3 Cir., 180 F.2d 149; Fleming v. Borders, 9 Cir., 165 F.2d 101; Southland Industries v. Federal Communications Commission, D.C.Cir., 99 F.2d If, as we hold, the motion was timely it is clea......
  • Healy v. Pennsylvania R. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 28 Abril 1950
    ...as improvidently taken: United States v. Crescent Amusement Co., 1944, 323 U.S. 173, 177, 65 S.Ct. 254, 89 L. Ed. 160; Fleming v. Borders, 9 Cir., 1947, 165 F.2d 101; Southland Industries, Inc. v. Federal Communications Commission, 1938, 69 App.D.C. 82, 99 F.2d 117. These cases are apposite......
  • Stevens v. Turner, 11255.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 18 Mayo 1955
    ...to our jurisdiction. Chieftain Pontiac Corp. v. Julian, 1 Cir., 209 F.2d 657; Green v. Reading Co., 3 Cir., 180 F.2d 149; Fleming v. Borders, 9 Cir., 165 F.2d 101. On dismissing an appeal as premature because timely motions for a new trial and for judgment in accordance with a reserved moti......
  • Green v. Reading Co., 9987.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 31 Enero 1950
    ...56 S.Ct. 706, 80 L.Ed. 1118; Kingman & Co. v. Western Mfg. Co., 1898, 170 U.S. 675, 678, 18 S.Ct. 786, 42 L.Ed. 1192; Fleming v. Borders, 9 Cir., 1947, 165 F.2d 101. In the Leishman case, the Supreme Court, dealing with a motion under Rule 52(b), said: "* * The motion was not addressed to m......
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