Harmon v. Superior Court
| Decision Date | 11 September 1962 |
| Docket Number | No. 17714.,17714. |
| Citation | 307 F.2d 796 |
| Parties | Francis L. HARMON, Appellant, v. The SUPERIOR COURT OF the STATE OF CALIFORNIA, IN AND FOR the COUNTY OF LOS ANGELES; Elmer 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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:
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. § 1343 and 42 U.S.C.A. §§ 1983 and 1985(2), the so-called Civil Rights Act. The named defendants are the Superior Court of California and judges of that court and of the District Court of Appeal of California, who decided a case against appellant, the District Attorney of Los Angeles County and two of his deputies and the Attorney General of California and one of his deputies, who respectively represented the appellant's adversary in the California Superior Court and District Court of Appeal, and the sheriff, court trustee, auditor, and treasurer of Los Angeles County. The claim is that each and all of these parties, in the course of an action in the California courts, brought against plaintiff on behalf of his daughter under the Uniform Reciprocal Enforcement of Support Act of California (Cal.Code Civ.Proc. §§ 1650-1690), deprived appellant of rights guaranteed to him by the Constitution and Laws of the United States. Appellant has attempted, however imperfectly, to state a claim under acts of Congress that expressly give the District Court jurisdiction. That court then had jurisdiction. (Addison, supra; see also Russell v. United States, 9 Cir., 1962, 306 F.2d 402).
The claim may be, as appellees assert, entirely spurious. The complaint may well not state a claim upon which relief can be granted. It may be that appellant cannot amend to state such a claim. But those are not the questions before us. The court cannot know, without...
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