Palmuth v. United States, 9362-9364.

Decision Date18 December 1939
Docket NumberNo. 9362-9364.,9362-9364.
Citation107 F.2d 975
PartiesPALMUTH et al. v. UNITED STATES. BRAWNER et al. v. SAME. COBBLEDICK et al. v. SAME.
CourtU.S. Court of Appeals — Ninth Circuit

Chalmers G. Graham and Felix T. Smith, both of San Francisco, Cal. (Clarence G. Morse, Truman R. Young, and

Pillsbury, Madison & Sutro, all of San Francisco, Cal., of counsel), for appellants.

Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., and James V. Hayes, Morris R. Clark, John V. Leddy, Samuel E. Neel, Robert Diller, and George F. Fisher, Jr., Sp. Assts. to Atty. Gen., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

Writ of Certiorari Granted December 18, 1939. See 60 S.Ct. 299, 84 L.Ed. ___.

MATHEWS, Circuit Judge.

These appeals are from orders denying motions to quash subpoenas duces tecum issued out of the District Court of the United States for the Northern District of California. The subpoenas were issued on November 2, 1939, and were directed to (1) Eugene Palmuth, president of Crowe Glass Company, (2) A. H. Brawner, officer and director of W. P. Fuller & Company, and (3) Lloyd N. Cobbledick, vice-president of Cobbledick-Kibbe Glass Company. Thereby each of the persons named was commanded to appear before the court on November 10, 1939, to testify and give evidence before the grand jury, and to bring with him certain letters, telegrams, correspondence, memoranda and other communications exchanged by or passing between the company of which he was an officer and one Sam Goodman.

On November 8, 1939, motions to quash the subpoenas were filed by Palmuth and Crowe Glass Company, Brawner and W. P. Fuller & Company, and Cobbledick and Cobbledick-Kibbe Glass Company, respectively. The motions were denied and notices of appeal were filed on November 9, 1939.

In each of these cases, appellants' brief states: "The jurisdiction of this Court exists by virtue of section 225(a), title 28, of the United States Code Annotated."1 Section 225(a) provides that the circuit courts of appeals shall have appellate jurisdiction to review by appeal "final decisions" in the district courts in all cases save where a direct review of the decision may be had in the Supreme Court under § 345 of title 28.2 The orders here appealed from are not "final decisions," within the meaning of § 225(a), and are not appealable.

The contrary holding, In re Cudahy Packing Co., 2 Cir., 104 F.2d 658, is clearly erroneous. That holding finds no support in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950, or in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. No subpoena was involved in either of those cases. In each of them, the appeal was from an order denying an application for the return of papers belonging to the applicant and alleged to have been wrongfully seized or impounded, and to enjoin the use thereof as evidence. Such an order is, in effect, a judgment or decree dismissing a suit or proceeding for the recovery of property.

Between such an order and the orders here appealed from, there is no pertinent similarity. Appellants' papers have not been seized or impounded. Appellants have not brought or had occasion to bring any suit or proceeding to recover their papers. The denial of motions to quash the subpoenas was not a dismissal of any suit or proceeding. Appellants may, notwithstanding such denial, disregard the subpoenas and, if prosecuted for contempt, may again...

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4 cases
  • Cobbledick v. United States Brawner v. Same Palmuth v. Same 8212 573
    • United States
    • U.S. Supreme Court
    • 26 Febrero 1940
    ...court. From the denial of these motions petitioners sought review by way of appeal to the Circuit Court of Appeals for the Ninth Circuit, 107 F.2d 975. That court found itself to be without jurisdiction and dismissed the appeals. We brought the cases here, 308 U.S. 547, 60 S.Ct. 299, 84 L.E......
  • Winder v. Consolidated Underwriters
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 15 Enero 1940
  • Employers Mut. Liability Ins. Co. v. Konvicka
    • United States
    • U.S. District Court — Southern District of Texas
    • 2 Agosto 1951 8306 et seq., be regarded as undertaken in the course of his employment. Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63." 107 F.2d 975. In Petroleum Casualty Co., v. Green, Tex.Civ.App., 11 S.W.2d 388, 390, it was held that an employee who was injured when cranking a co-employ......
  • O'CONNOR v. O'CONNELL, 5267.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 20 Marzo 1958
    ...grand jury was a "final decision" and hence appealable to a court of appeals. The Circuit Court of Appeals for the Ninth Circuit, Palmuth v. U. S., 107 F.2d 975, had held that the order was not a final decision and the Supreme Court affirmed. But in doing so the Court was careful to disting......

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