Javor v. Brown

Decision Date24 August 1961
Docket NumberMisc. No. 1254.
PartiesEddie G. JAVOR, Appellant, v. Edmund G. BROWN, Governor of the State of California, et al., Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Eddie G. Javor, in pro. per.

Before ORR, HAMLEY and MERRILL, Circuit Judges.

PER CURIAM.

In this action invoking the Federal Civil Rights Act, 42 U.S.C.A. § 1975 et seq., and other statutes relating to jurisdiction, plaintiff seeks damages, a declaratory judgment, and injunctive relief from eighteen named officials of the state of California.

Defendants moved for an order dismissing the "complaint and action" for failure to state facts establishing jurisdiction or upon which relief could be granted. The district court entered an order granting "the motion by defendants to dismiss the complaint herein * * *." Thus, while defendants sought dismissal of the action as well as the complaint, the motion was granted only to the extent of dismissing the complaint.

On June 28, 1961, Javor filed in the district court a notice of appeal from this order, tendering the five-dollar district court fee for such a filing. At the same time he filed in the district court a motion for leave to appeal in forma pauperis. Since Javor had paid all fees in connection with the appeal which were required to be filed in the district court, the latter court transmitted to this court for disposition the motion to appeal in forma pauperis.

This court remanded the cause to the district court for certification as to whether on not the appeal was taken in good faith, with provision that the proceedings be then returned to this court. On August 10, 1961, the district judge certified that the appeal was not taken in good faith. The reason stated in the certificate is that an order granting a motion to dismiss a complaint is not an appealable order.

An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith unless the certificate is first set aside. 28 U.S.C.A. § 1915(a); Williams v. Heinze, 9 Cir., 271 F.2d 308. If it appears from the record that the order sought to be reviewed is not appealable, the conclusion is warranted that the appeal is not taken in good faith.

Except under special circumstances not present here, an order which dismisses a complaint without dismissing the action is not an appealable order. Williams v. Peters, 9 Cir., 233 F.2d 618, 16 Alaska 471. Since the order here in question dismissed only the...

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17 cases
  • O'Neal v. Price
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 14, 2008
    ...appeal in forma pauperis, and construe the prisoner's motion as a timely notice of appeal. See 28 U.S.C. § 2106; see also Javor v. Brown, 295 F.2d 60, 61 (9th Cir.1961) (interpreting pre-PLRA § 1915(a) to stand for the proposition that "[a]n appeal may not be taken in forma pauperis if the ......
  • Marshall v. Sawyer
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 7, 1962
    ...dismisses a complaint without expressly dismissing the action is not, except under special circumstances, an appealable order. Javor v. Brown, 9 Cir., 295 F.2d 60. The special circumstances which will permit this court to regard such an order as final and appealable must be such as to make ......
  • Garver v. Public Service Co. of New Mexico
    • United States
    • New Mexico Supreme Court
    • December 12, 1966
    ...319 F.2d 53 (10th Cir.1963); Luke v. Ellis, 201 Ga. 482, 40 S.E.2d 85; Golucke v. Greene, 76 Ga.App. 521, 46 S.E.2d 515; Javor v. Brown, 295 F.2d 60 (9th Cir.1961); Atwater v. North American Coal Corp., 111 F.2d 125 (2d Cir.1940); Cory Bros. & Co. v. United States, 47 F.2d 607 (2d Cir. 1931......
  • Azar v. Conley
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 11, 1973
    ...an appealable order. Richardson v. United States, 9 Cir., 336 F.2d 265, 266; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 643; Javor v. Brown, 9 Cir., 295 F.2d 60, 61. The special circumstances which will permit this court to regard such an order as final and appealable must be such as to make......
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