Janousek v. Doyle, 17055

Decision Date20 February 1963
Docket NumberNo. 17055,17077.,17055
Citation313 F.2d 916
PartiesJoseph O. JANOUSEK, Appellant, v. Harold C. DOYLE, Louis B. French, Edward Sampson, Parnell Donohue, and William Hladky, Appellees (two cases).
CourtU.S. Court of Appeals — Eighth Circuit

Adolph K. Schwartz, St. Louis, Mo., Joseph O. Janousek, Washington, D. C., on the brief pro se, for appellant.

Louis B. French, Harold C. Doyle, Yankton, S. D., and Parnell Donohue, Pierre, S. D., and Louis B. French, Yankton, S. D., pro se, for appellees.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

PER CURIAM.

Appeal No. 17,055 is from an order denying a preliminary injunction, and No. 17,077 is from the judgment dismissing the action with prejudice after No. 17,055 was filed in this court. A résumé of the proceedings in the court below as disclosed by the original files is necessary to fully understand and evaluate the issues and contentions of the parties.

Joseph O. Janousek (plaintiff-appellant), a practicing attorney in the District of Columbia, instituted this action in the United States District Court for the District of South Dakota on November 25, 1959.1 Defendants were Harold C. Doyle, then State's Attorney for Yankton County, South Dakota; Louis B. French, a practicing attorney in that county; Edward Sampson, then sheriff of that county; Parnell Donohue, then Attorney General of the State of South Dakota, and William Hladky, former clerk of the Circuit Court of Yankton County. The complaint, consisting of eighteen typewritten pages, alleged that the action arose under the Fourteenth Amendment to the United States Constitution and under the Civil Rights Act, 42 U.S.C. § 1981 et seq., and under 28 U.S.C. § 1343. The action was premised on an alleged conspiracy between defendants supposedly entered into and carried out for the purpose of preventing appellant Joseph Janousek from appearing in South Dakota and representing plaintiffs in Civil Action No. 1122, supra, footnote 1, then pending in the same federal court and in which Emma Janousek, et al., were plaintiffs, and William L. Bruce, et al., were defendants. Included in the complaint was an allegation that defendants, in furtherance of the conspiracy, had contrived to falsely charge plaintiff with violation of a local criminal law and had attempted to procure his extradition to South Dakota upon these false charges, thereby attempting to intimidate him for the purpose of preventing him from returning to South Dakota to litigate the pending civil actions against defendants.

All of the defendants filed separate motions to dismiss the complaint.

Upon motion of plaintiff the cause was continued from the March, 1961 to the August, 1961 term of court. On August 1, 1961, plaintiff filed another motion for continuance based upon his illness and the illness of Emma Janousek. In support of the motion Mr. Janousek averred under oath:

"Due diligence has been exercised in the preparation of this case and in trial preparation, both by Mr. Mundt, South Dakota counsel, the undersigned affiant, and attorney-specialists in the field of civil rights in different sections of the United States. At the time of trial two attorneys, of Washington, D. C., widely experienced in this class of litigation are entering their appearances in this case for the plaintiff to assist in its trial with Mr. Mundt. * * *
"The plaintiff states unreservedly that he, his several counsel, witnesses and all others, so far as the plaintiff\'s case is concerned, will be ready promptly to proceed with the trial of this case and most anxious to do so, at the March 1962 Term of this Court, as it presents questions and rights of extreme and utmost importance not alone to this plaintiff and his clients, but to the bar, members of the legal profession generally, and organized groups concerned with the preservation of civil liberties in the United States. * * *"

The cause having been continued to the March term of court, on March 12, 1962, plaintiff filed motion for temporary injunction, with supporting affidavit, seeking to enjoin defendants from interfering with plaintiff in the prosecution of the litigation pending in the South Dakota District Court, and on March 14, 1962, plaintiff filed motion to transfer the cause to another federal district. The court entered orders, of which plaintiff had notice, setting both motions for hearing on March 24, 1962.

Plaintiff failed to appear in person or by counsel on March 24, but all defendants appeared either personally or by counsel. Thereupon, after due consideration, the court denied the motion to transfer and the motion for preliminary injunction, and the cause was "pursuant to the Order of this Court on the opening day of this term, placed on the peremptory call of the court trial calendar and at the end thereof."2 From that portion of the order denying the temporary injunction plaintiff appealed to this court.3 The case, being at issue, came on for trial on March 28, 1962, but again plaintiff failed to appear either in person or by counsel while the defendants were present in person and by counsel and announced ready for trial. Thereupon, the cause was dismissed,4 and as stated, from this dismissal judgment plaintiff has also appealed.

These appeals present two basic issues. In No. 17,055 appellant contends that the court below ignored and violated Rule 52 (a) of the Fed.R.Civ.P. in that it failed to make findings of fact and conclusions of law showing the grounds for its action in denying the temporary injunction,5 and insists upon reversal with directions to the court to comply with the rule. Appellees argue: (1) the affirmance of the dismissal in cause No. 1122Janousek v. Wells, supra, 303 F.2d 118 (sometimes referred to in the record as the parent suit) — renders this action moot, and (2) that the failure of the court to file more explicit and formal findings of fact is not fatal to the order denying the temporary restraining order.

In No. 17,077 appellant's position is that upon the filing of notice of appeal from the interlocutory order denying the temporary injunction, jurisdiction was transferred from the district court to the court of appeals and consequently the district court acted in a vacuum in attempting to dismiss the cause As thus posited, we will first consider and dispose of the second appeal, No. 17,077, because manifestly if the court had the power to act when it dismissed the cause of action, the appeal in No. 17,055 is rendered moot provided, of course, that the dismissal was not the result of an abuse of discretion.

As a general rule, the filing of a timely and sufficient notice of appeal operates to transfer jurisdiction of the case to the court of appeals, and after such filing the district court is without jurisdiction to proceed further in the case, except in aid of the appeal or under Rule 60(a), Fed.R.Civ.P. Hence, subsequent proceedings in the district court are ordinarily ineffective. 7 Moore, Federal Practice § 73.13, at 3158-59 (2d ed. 1955); 3A Barron and Holtzoff, Federal Practice and Procedure § 1558 (Rules ed. 1958). This rule has been applied with consistency in cases where the order or judgment from which the appeal was taken was final in its nature as to all or certain aspects of the case. See for example: Commonwealth Ins. Co. of N. Y. v. O. Henry Tent & Awn. Co., 7 Cir., 273 F.2d 163 (1959); Thompson v. Harry C. Erb, Inc., 3 Cir., 240 F.2d 452 (1957); Grand Opera Co. v. Twentieth Century-Fox Film Corp., 7 Cir., 235 F.2d 303 (1956); Smith v. Pollin, 90 U.S.App.D. C. 178, 194 F.2d 349 (1952); Secretary of Banking of Pennsylvania v. Alker, 3 Cir., 183 F.2d 429 (1950), cert. denied, Du Ban v. Federal Deposit Ins. Corp., 340 U.S. 917, 71 S.Ct. 351, 95 L.Ed. 663 (1951); Fiske v. Wallace, 8 Cir., 115 F.2d 1003 (1940), cert. denied, 314 U.S. 663, 62 S.Ct. 123, 86 L.Ed. 566 (1941); Miller v. United States, 7 Cir., 114 F.2d 267 (1940); and Midland Terminal Ry. Co. v. Warinner, 8 Cir., 294 F. 185 (1923).

However, where, as here, the appeal is from an interlocutory order denying a motion for preliminary injunction, the foregoing rule does not obtain, and the filing of the notice of appeal from such an order does not ipso facto divest the district court of jurisdiction to proceed with the cause with respect to any matter not involved in the appeal, or operate to automatically stay other proceedings in the cause pending the appeal.6

Section 129 of the March 3, 1911 Code, 36 Stat. 1134, a forerunner of 28 U.S.C.A. § 1292(a), provided, in summary, that where an injunction shall be granted, continued, refused or dissolved by an interlocutory order of a district court, an appeal may be taken from such interlocutory order to the circuit court of appeals, provided the appeal is taken within thirty days from the entry of such order, "and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or the appellate court, or a judge thereof, during the pendency of such appeal."

In considering the above predecessor of § 1292(a), the Sixth Circuit in Foote v. Parsons Non-Skid Co., 196 F. 951 (1912), announced "an appeal from a motion granting a preliminary injunction does not have the effect to remove the cause to this court, but the cause generally remains in the court below, and continues in the control of that court. Section 129, Judicial Code." The Second Circuit in an earlier case, Crown Cork & Seal Co. of Baltimore City v. Standard Stopper Co., 136 F. 184 (1904), stated:

"As the appeal is from an interlocutory decree granting an injunction and ordering an accounting, the cause, for all purposes except a review of the injunction below * * is unaffected by the appeal, in the absence of an order by that court staying the proceedings. Section 7, Court of Appeals Act June 6, 1900, c. 803, 31 Stat. 660."

See also, Ex parte National Enameling & Stamping Co., 201 U.S. 156, 26 S.Ct. 404, 50 L.Ed....

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