Jarecki v. Whetstone

• Citation: 192 F.2d 121
• Decision Date: 06 November 1951
• Docket Number: No. 10349.,10349.
• Parties: JARECKI, Collector of Internal Revenue, v. WHETSTONE.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

192 F.2d 121 (1951)

JARECKI, Collector of Internal Revenue, v. WHETSTONE.

No. 10349.

United States Court of Appeals Seventh Circuit.

November 6, 1951.

Irene B. Whetstone, in pro per.

Theron L. Caudle, Asst. Atty. Gen., Richard D. Harrison, Special Asst. to the Atty. Gen., Otto Kerner, Jr., U. S. Atty., Chicago, Ill., Ellis N. Slack, A. F. Prescott, Fred E. Youngman, Special Assts. to the Atty. Gen., for appellee.

Before MAJOR, Chief Judge, DUFFY and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Defendant (hereinafter called taxpayer), a resident of Chicago, appeals from an order entered by the district court on February 12, 1951, directing her, pursuant to summons¹ issued by the Collector of Internal Revenue for the First District of Illinois, to appear before the Collector on February 23, 1951, with all pertinent books of account and records and give testimony with respect to her income tax liability for 1944. The Collector's summons had first been issued on October 24, 1947, requiring the appearance of taxpayer before the Collector on November 17, 1947.

The Collector's petition alleged that defendant failed to appear at the time and place originally designated in the summons, and did not give any cause or reason for her failure to so appear, and prayed that a writ of attachment be issued to bring defendant before the court to show cause why she should not be adjudged in contempt. A writ of body attachment was issued on January 5, 1948, directing the United States Marshal to bring the taxpayer before the court for such action as the court, pursuant to hearing, should deem proper. The writ was executed January 6, 1948, and after a hearing the cause was continued and the defendant released on her own recognizance. On January 23, 1948, the taxpayer filed a motion to dismiss the Collector's petition.

On January 16, 1948, taxpayer filed a suit against the United States in the District Court for the Northern District of Illinois seeking a refund of income taxes alleged to have been erroneously paid for the years 1943 to 1946. On November 15, 1948, the district court dismissed her suit for refund, Whetstone v. United States, D.C., 82 F.Supp. 478, affirmed by this court without opinion on April 28, 1949, certiorari denied 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746, rehearing denied 338 U.S. 840, 70 S.Ct. 36, 94 L.Ed. 514, and on the same date the district court denied her motion to dismiss the Collector's petition in the instant case. Jarecki v. Whetstone, D.C., 82 F.Supp. 367. Thereafter, on December 2, 1948, defendant filed an answer herein.

On May 3, 1949, the district court ordered taxpayer to appear before the Collector on May 10, 1949, with her books and records, and to give testimony with respect to her 1944 tax liability. Taxpayer immediately appealed, but the May 3 order was vacated on May 6, and the matter continued generally, upon agreement of the parties that taxpayer would withdraw her appeal and would petition for certiorari in her suit for refund. Certiorari in that case was denied on June 20, 1949, and her petition for rehearing was denied on October 10, 1949, but the Collector did not petition the district court to reinstate the May 3, 1949, order until February 9, 1951. The order of February 12, 1951, appealed from herein, reinstated the May 3, 1949, order with the date for taxpayer's appearance before the Collector set at February 23, 1951.

On February 16, 1951, taxpayer commenced another suit in the district court against Jarecki, the plaintiff herein; it is still pending. In said suit taxpayer, petitioning for the convening of a statutory three-judge court, seeks to enjoin the enforcement against her of Secs. 3615(e), 3654(a) and 3653, Internal Revenue Code, 26 U.S.C. §§ 3615(e), 3654(a), 3653, and demands a money judgment against Jarecki for $3,000.00 to reimburse her for the time and effort expended by her in defending the case at bar.

Plaintiff did not move to dismiss this appeal on the ground that the order of February 12, 1951, was not an appealable order, but did remark in a footnote on page 2 of his brief: "Since this order merely directed the defendant to appear and give testimony there may be some question as to whether it is an appealable order. (Citing)."

Title 28, U.S.C., Sec. 1291 provides: "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * *, except where a direct review may be had in the Supreme Court." As no direct review in the Supreme Court is here involved, the language of the exception is not material.

If the order of February 12, 1951, is not a "final decision," this court does not have jurisdiction. National Nut Co. of California v. Kelling Nut Co., et al., 7 Cir., 134 F.2d 532, 533; Hatzenbuhler v. Talbot, 7 Cir., 132 F.2d 192. It is our duty to decide any question of jurisdiction whether or not the parties have raised it. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184, 56 S.Ct. 780, 80 L.Ed. 1135; Flegenheimer v. General Mills, Inc., 2 Cir., 191 F.2d 237, 238; National Nut Co. of California v. Kelling Nut. Co., et al., supra, 134 F.2d at p. 533. The order of February 12, 1951, appealed from merely required that the taxpayer appear before the Collector to give testimony regarding her 1944 income and to bring her records with her. It is our view that the order was not a final decision.

In Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686, a suit brought for violation of the Anti-Trust Law of July 2, 1890, 15 U.S.C.A. §§ 1-7, 15 note, a witness had refused to answer questions or produce books before an examiner, pleading the privilege of the Fifth Amendment. The trial court ordered the books to be produced and the questions answered. The Supreme Court held the order of the district court was interlocutory, and not a final decision.

In National Nut Co. of California v. Kelling Nut Co., et al., supra, the district court ordered compliance with a subpoena duces tecum issued to the officers of the defendant company to appear and testify and to produce and bring with them certain papers and files of the defendant. This court held that the order was not a final decision, but was only in aid of the subpoena and for the purpose of making it effective.

The latest decision of the Supreme Court on the general subject is Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, where it was held that an order of the district court denying a motion to quash a subpoena duces tecum requiring one to appear with papers and testify before a grand jury was not a final decision within the meaning of the statute. The court quoted from the ruling in Alexander v. United States, supra, at some length and with approval.

In O'Malley v. Chrysler Corp., 7 Cir., 160 F.2d 35, the district court entered an order requiring the...