Mellon v. Mertz
| Decision Date | 07 January 1929 |
| Docket Number | No. 4737.,4737. |
| Citation | 30 F.2d 311,58 App. DC 302 |
| Parties | MELLON, Secretary of the Treasury, et al. v. MERTZ. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Peyton Gordon, Leo A. Rover, and Chas. T. Hendler, all of Washington, D. C., for appellants.
Josephus C. Trimble, George E. H. Goodner, and Jerry A. Mathews, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
In the court below the appellee, as plaintiff, filed a bill of complaint against the Secretary of the Treasury, the Commissioner of Internal Revenue, and a certain collector of internal revenue, as defendants, complaining that an alleged illegal assessment of income taxes for the year 1920 had been made against him, and that the defendants were about to enforce its collection by distraint or other unwarranted process, unless restrained by order of the court. He prayed that a temporary restraining order should issue against the defendants to restrain them pendente lite from enforcing such collection, and that upon final hearing a perpetual injunction should be entered against them, finally enjoining them from collecting the assessment or any part thereof. The plaintiff also prayed for other pertinent relief.
The defendants filed a motion to dismiss the bill upon grounds equal to a general demurrer, and also a motion to quash the service upon the collector of internal revenue as made in the case. The court heard and overruled both of these motions, and also entered an interlocutory order enjoining the defendants pendente lite from attempting in any way to collect the assessment in question. The following notation was made by the lower court in respect to a notice of appeal, to wit: "From so much of the foregoing decree as grants a temporary injunction the defendants note an appeal in open court." The defendants, as appellants, then filed the present appeal in this court.
The appeal is premature. It is provided by law that any party aggrieved by any final order, judgment, or decree of the Supreme Court of the District of Columbia, or of any justice thereof, may appeal therefrom to this court, and that appeals shall also be allowed to this court from all interlocutory orders of the Supreme Court of the District, or by any justice thereof, whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions,...
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