Helen v. Wyman, 14619.
| Decision Date | 16 May 1955 |
| Docket Number | No. 14619.,14619. |
| Citation | 222 F.2d 890 |
| Parties | Robert ST. HELEN, Movant, v. Lt. Gen. W. C. WYMAN, Maj. Gen. Edwin K. Wright, and Col. Jacob H. Bloss, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellant.
McMurray, Brotsky, Bancroft & Tepper, Allan Brotsky, Siegfried Hesse, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and BONE, Circuit Judge.
St. Helen moves to dismiss respondents' appeal from the district court's order to cancel a certificate of undesirable discharge given him by the army.
On October 29, 1954, the district court issued an order restraining the discharge of St. Helen to preserve the status quo in order that the court might have a hearing to determine the merits of St. Helen's action for injunction and declaratory relief and application for preliminary injunction to prevent the giving of such a certificate. On October 29th the restraining order was violated when St. Helen was given the certificate. On December 15, 1954 the district court ordered respondents to cancel the certificate of undesirable discharge within five days and ordered that if respondents failed so to act the certificate of discharge would be deemed null and void.
The issue is whether there is any appealable order before us. We think not. Neither the restraining order nor the order cancelling the certificate is a final order within the meaning of 28 U.S.C. § 1291.1 Each of the orders was a preliminary order to preserve the status quo prior to the issuance of the certificate of discharge until the district court could hold a hearing. "So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, at page 546, 69 S.Ct. 1221, at page 1225, 93 L.Ed. 1528.
Certain interlocutory orders are also made appealable by special provision of 28 U.S.C. § 1292.2 The orders here involved do not come close to any there specified unless they are deemed to be injunctions. Although a temporary restraining order becomes an injunction if a hearing is called after a substantial time has elapsed (evidently 20 days),3 the temporary restraining order was frustrated immediately after its issuance by the giving of an undesirable discharge certificate to St. Helen. The order of the district court cancelling the certificate was stayed by order of this court on December 27, 1954. The running of the period during which a temporary restraining order can remain in force without becoming a temporary injunction was tolled by the violation of the restraining order and by this court's order staying the second order of the district court.
By dismissing the appeal this court will be able, in short order, to consider the case after the district court has had an opportunity to determine the issue involved. The district court should immediately conduct its hearing. If it...
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United States v. Wood
...U & A & M Col. v. Ludley, 5 Cir., 1958, 252 F.2d 372. 4 See Connell v. Dulien Steel Products, 5 Cir., 1957, 240 F.2d 414; St. Helen v. Wyman, 9 Cir., 1955, 222 F.2d 890; Mesabi Iron Co. v. Reserve Mining Co., 8 Cir., 1959, 270 F.2d 567; Pennsylvania Motor Truck Ass'n v. Port of Philadelphia......
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St. Helen v. Wyman, Civ. No. 34160.
...appealed from the last-mentioned order, but the Court of Appeals held that it was not an appealable order. St. Helen v. Wyman, 9 Cir., April 13, 1955, 222 F. 2d 890. The defendants have answered the complaint and now move this Court to Evidence has been taken as to the events of the day pla......
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Sohappy v. Smith, s. 75--2409
...order. This portion of the appeal must be dismissed because the order is not appealable under 28 U.S.C. § 1292(a)(1). (St. Helen v. Wyman (9th Cir. 1955), 222 F.2d 890, 9 J. Moore, Federal Practice P110.20(5), at 253--54 (2d ed. 1975).) Washington did not seek an interlocutory appeal pursua......