Hogg v. United States, No. 18745.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtO'SULLIVAN, PHILLIPS and COMBS, Circuit
Citation411 F.2d 578
PartiesJames Steven HOGG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Decision Date28 May 1969
Docket NumberNo. 18745.

411 F.2d 578 (1969)

James Steven HOGG, Plaintiff-Appellee,
v.
UNITED STATES of America, Defendant-Appellant.

No. 18745.

United States Court of Appeals Sixth Circuit.

May 28, 1969.


Richard M. Roberts, Atty., Dept. of Justice, Washington, D. C., for appellant; Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Harry Marselli, Stuart A. Smith, Attys., Dept. of Justice, Cline, U. S. Atty., Lexington, Ky., of counsel.

S. Russell Smith, Louisville, Ky., for appellee; Kirby A. Scott, M. K. Gilbert,

411 F.2d 579
III, Louisville, Ky., on brief; Smith & Smith, Louisville, Ky., of counsel

Before O'SULLIVAN, PHILLIPS and COMBS,* Circuit Judges.

PHILLIPS, Circuit Judge.

This appeal presents the question of whether the District Court had jurisdiction to strike the notice of appeal of the United States in a tax case on the ground that it was not properly authorized. The notice was filed by the United States Attorney, who was one of the attorneys of record, at the direction of an attorney in the Tax Division of the Department of Justice who claims that he had been delegated the power to authorize such filings. The District Court struck the notice of appeal on the ground that at the time of its filing the Solicitor General had not authorized an appeal.

The action of the District Court which gives rise to this appeal occurred in post-trial proceedings in a civil tax refund suit. The jury returned a verdict in favor of the taxpayer on August 2, 1967. A judgment was rendered directing a refund of income taxes plus interest. On September 14, 1967, the United States moved for a new trial and requested that the hearing on its motion be deferred until not less than 30 days after it received a copy of the transcript of the trial proceedings. On November 15, 1967, the District Court conducted a hearing on the motion for a new trial and overruled it, rejecting the Government's request that the hearing be postponed until a transcript of the trial proceedings became available.

A timely notice of appeal in proper form was filed on behalf of the United States on January 8, 1968. It is this notice of appeal, filed pursuant to Rule 73 on the Fed.R.Civ.P.,1 which is the center of controversy on the present appeal.

A motion was made in the District Court for an extension of time for filing the record and docketing the appeal in this Court, on the ground that the trial transcript was not available from the court reporter and that, due to a backlog, the court reporter would not be able to...

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38 practice notes
  • Securities and Exchange Commission v. Crofters, Inc., Civ. A. No. 70-351.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 10, 1972
    ...a notice of appeal operates to transfer jurisdiction of a case from the District Court to the Court of Appeals, see Hogg v. United States, 411 F.2d 578 (C.A.6 1969); Cleveland-Cliffs Iron Co. v. Grosse Ile Bridge Co., 239 F.Supp. 872 (S.D.Mich.E.D.1964), the rule is otherwise in situations ......
  • Sherrod v. Piedmont Aviation, Inc., No. CIV-2-77-179.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • July 24, 1978
    ...appellate jurisdiction and is not within the jurisdiction of the District Court. * * *" Hogg v. United States, C.A.6th (1969), 411 F.2d 578, --------Notes: 1 One month after the defendant filed its aforementioned motion, and subsequent to the preparation of this opinion, the plaintiff ......
  • United States v. Stanley, No. 71-1641.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 1972
    ...Esso Shipping Co., 259 F.2d 65, 68 (3rd Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); Hogg v. United States, 411 F.2d 578, 580 (6th Cir. 1969); Cord v. Smith, 370 F.2d 418, 421-422 (9th Cir. 36 See note 34, supra. 37 Hansford v. United States, supra note 13, 12......
  • Mancuso v. Mancuso
    • United States
    • Appeals Court of Massachusetts
    • August 14, 1980
    ...G.L. c. 239, § 5 (appeal bonds and periodic payments in summary process cases). See also G.L. c. 214, § 6(6). 7 See Hogg v. United States, 411 F.2d 578 (6th Cir. 1969); Graves v. General Ins. Corp., 381 F.2d 517, 518 (10th Cir. 1967). Compare Ruby v. Secretary of United States Navy, 365 F.2......
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38 cases
  • Securities and Exchange Commission v. Crofters, Inc., Civ. A. No. 70-351.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 10, 1972
    ...a notice of appeal operates to transfer jurisdiction of a case from the District Court to the Court of Appeals, see Hogg v. United States, 411 F.2d 578 (C.A.6 1969); Cleveland-Cliffs Iron Co. v. Grosse Ile Bridge Co., 239 F.Supp. 872 (S.D.Mich.E.D.1964), the rule is otherwise in situations ......
  • Sherrod v. Piedmont Aviation, Inc., No. CIV-2-77-179.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • July 24, 1978
    ...appellate jurisdiction and is not within the jurisdiction of the District Court. * * *" Hogg v. United States, C.A.6th (1969), 411 F.2d 578, --------Notes: 1 One month after the defendant filed its aforementioned motion, and subsequent to the preparation of this opinion, the plaintiff ......
  • United States v. Stanley, No. 71-1641.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 14, 1972
    ...Esso Shipping Co., 259 F.2d 65, 68 (3rd Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1959); Hogg v. United States, 411 F.2d 578, 580 (6th Cir. 1969); Cord v. Smith, 370 F.2d 418, 421-422 (9th Cir. 36 See note 34, supra. 37 Hansford v. United States, supra note 13, 12......
  • Mancuso v. Mancuso
    • United States
    • Appeals Court of Massachusetts
    • August 14, 1980
    ...G.L. c. 239, § 5 (appeal bonds and periodic payments in summary process cases). See also G.L. c. 214, § 6(6). 7 See Hogg v. United States, 411 F.2d 578 (6th Cir. 1969); Graves v. General Ins. Corp., 381 F.2d 517, 518 (10th Cir. 1967). Compare Ruby v. Secretary of United States Navy, 365 F.2......
  • Request a trial to view additional results

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