Jung v. Mining Co
| Citation | 2 L.Ed.2d 806,78 S.Ct. 764,356 U.S. 335 |
| Decision Date | 28 April 1958 |
| Docket Number | No. 619,619 |
| Parties | Henry M. JUNG, John H. Jung, Arthur E. Serwich et al., Petitioners, v. K. & D. MINING CO., Inc., a Corporation of the State of Washington, M. L. Davies (sometimes known as Myron L. Davies), et al |
| Court | United States Supreme Court |
Zeamore A. Ader, Chicago, Illinois, for petitioners.
Samuel J. Wettrick, Seattle Wash. and Floyd F. Shields, Chicago, Ill., for respondents.
Petitioners seek our writ of certiorari to review the judgment of the Court of Appeals dismissing their appeal as untimely.
The facts are undisputed. Petitioners brought this action to recover the purchase price of securities alleged to have been worthless and fraudulently sold to them by respondents in violation of § 12 them by responents in violation of § 12 of the Securities Act of 1933, as amended (48 Stat. 84, 15 U.S.C.A. § 77l) and of § 10(b) of the Securities Exchange Act of 1934, as amended (48 Stat. 891, 15 U.S.C.A. § 78j(b). Respondents amended complaint for failure to state a claim upon which relief could be granted. On May 10, 1955, the District Court sustained the motion, dismissed the complaint, and granted petitioners 'twenty days from this date within which to file an amended complaint.' On May 27, 1955, petitioners moved to vacate the order of May 10 dismissing the first amended complaint or, in the alternative, to extend the time to file an amended complaint. On that date (May 27, 1955) the Court overruled petitioners' motion to vacate the order of May 10, but granted leave to petitioners to file an amended complaint within 20 days from May 27, 1955. Petitioners did not file an amended complaint. On March 25, 1957, petitioners filed an instrument in the case by which they elected to stand on their first amended complaint. On that day (March 25, 1957) the Court ordered that 'this cause of action be and it hereby is dismissed without costs.' On April 16, 1957, petitioners filed notice of appeal 'from final judgment entered in this action on March 25, 1957.' Respondent moved in the Court of Appeals to dismiss the appeal as untimely. The Court of Appeals, holding that the order of May 27, 1955, became the District Court's final judgment in the case when petitioners failed to file an amended complaint within the 20 days thereby allowed for that purpose, sustained the motion and dismissed the appeal of April 16, 1957, as not taken within 30 days from the entry of the judgment. 246 F.2d 281.
We think that the District Court's order of May 27, 1955, denying petitioners' motion to vacate the order of May 10, 1955, but granting further leave to petitioners to amend their complaint, did not constitute the final judgment in the case. It did not direct 'that all relief be denied' (Rule 58 of Federal Rules of Civil Procedure, 28 U.S.C.A.) but left the suit pending for further proceedings 'either by amendment of the (complaint) or entry of final judgment.' Missouri & Kansas Interurban R. Co. v. City of Olathe, 222 U.S. 185, 186, 32 S.Ct. 46, 47, 56 L.Ed. 155. The situation did 'not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after ecpiration of the time allowed for amendment is required to make a final disposition of the cause.' Cory Bros. & Co., Limited, v. United States, 2 Cir., 47 F.2d 607. Cf. United States v. F. & M. Schaefer Brewing Co., ...
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...orders." Dismissals that are without prejudice to refiling are not "final" for purposes of appeal. See Jung v. K & D Mining Co., 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958) (dismissal of a complaint with leave to file an amended complaint is not a "final" and "appealable" order); Mesa ......
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..., 785 F.3d 986, 998 (5th Cir. 2015) ("[U]ndocketed orders cannot be appealed."). See also Jung v. K. & D. Mining Co. , 356 U.S. 335, 337–38, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958) (per curiam) (holding that a district court order dismissing the complaint with leave to amend within twenty days w......
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...to distinguish it from Murray .Our conclusion comports with the Supreme Court's decision in Jung v. K. & D. Mining Co. , 356 U.S. 335, 78 S.Ct. 764, 2 L.Ed.2d 806 (1958) (per curiam). Cf. Diss. Op. at 1272-75. The nonfinal order in that case dismissed only the "complaint," 356 U.S. at 33......
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Lopez v. Smith
...a dismissal at all and so circumvents the mandatory language of section 1915(e)(2). To support this claim, they cite Jung v. K&D Mining Co., 356 U.S. 335 (1958), and WMX Technologies, Inc., v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc), both of which held that a Rule 12(b)(6) dismissal......
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In An En Banc Decision, The Fourth Circuit Clarifies The Appealability Of Dismissals Without Prejudice - Britt v. DeJoy
...would not run - even if the plaintiff fails to amend or fails to file the amendment on time. Id. at *6 (citing Jung v. K. & D. Min. Co., 356 U.S. 335, 337, (1958) (finding that a plaintiff who was granted twenty days to amend obtained a final, appealable decision when electing to stand on h......