U.S. Court of Appeals for the Ninth Circuit, 1942

Wright v. Gibson

U.S. Court of Appeals for the Ninth Circuit · Decided June 15, 1942 · Wilbur, Denman, Mathews

128 F.2d 865; 1942 U.S. App. LEXIS 4608 (Federal Reporter, Second Series)

Counsel

Herbert T. Silverberg, of Los Angeles, Cal., for appellant., Musick & ' Burrell and Harold H. Streight, all of Los Angeles, Cal., for ap-pellee Homer L. Gibson., Mosher & Shafer, of LoS Angeles, Cal,, for appellee Frank W. Royer.

Cases that cite this one

28 later published cases cite this decision. The 24 that cite it most often are listed here.

Kanatser v. Chrysler Corp. (10th Cir. 1953)
United States v. State of Arizona (9th Cir. 1953)
Knevelbaard Dairies v. Kraft Foods, Inc. (9th Cir. 2000)
Knevelbaard Dairies v. Kraft Foods, Inc. (9th Cir. 2000)
Warner Bros. Inc., J. Joseph Bainton, Esquire v. Dae Rim Trading, Inc., and Yun Yon Cho (2d Cir. 1989)
United States ex rel. Fielding v. Degnan (3d Cir. 1978)
Teague v. Asheboro Motor Company (N.C. Ct. App. 1972)
Decker v. City of Tucson (Ariz. Ct. App. 1966)
Cmax, Inc., Also D. B. A. City Messenger of Hollywood and City Messenger Air Express v. Drewry Photocolor Corporation (9th Cir. 1961)
Libby, McNeill & Libby, a Corporation v. Alaska Industrial Board and Linda Miriam Johnson (9th Cir. 1954)
United States v. Fallbrook Public Utility Dist. (United States District Court for the Southern District of California 1953)
Weldon v. United States (9th Cir. 1952)
Meloy v. Saint Paul Mercury Indemnity Co. (Ariz. 1951)
Holdsworth v. United States (Two Cases) (1st Cir. 1950)
Prickett v. Consolidated Liquidating Corp. (9th Cir. 1950)
Blanco v. United States (9th Cir. 1950)
Turnbull v. Cyr (9th Cir. 1950)
Brown v. MOUNTAIN STATES TELEPHONE & TEL. CO. (Colo. 1950)
Forstner Chain Corp. v. Marvel Jewelry Mfg. Co. (1st Cir. 1949)
Fleming v. Fry (9th Cir. 1947)
St. Louis Amusement Co. v. Paramount Film Distributing Corp. (8th Cir. 1946)
Peoples Bank v. Federal Reserve Bank (9th Cir. 1945)
Cashion v. Bunn (9th Cir. 1945)
Tee-Hit-Ton Tribe of Tlingit Indians ex. rel. U. S. v. Olson (9th Cir. 1944)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

MATHEWS, Circuit Judge.

In an action by appellant against appel-lees, appellant filed a fourth amended complaint (hereafter called the complaint) which contained two counts. Appellees moved to dismiss the second count. The court heard the motions and, on July 12, 1941, filed a written opinion concluding with the statement that “The motion 1 * * * is granted.” Thereupon, on July 12, 1941, the clerk of the court made a minute entry stating that the motions had theretofore been argued and submitted, and that “The court now files its opinion; and, pursuant thereto, said motions are granted.” On October 10, 1941, appellant filed a notice of appeal reading as follows:

“Notice is hereby given that [appellant] hereby appeals to the Circuit Court of Appeals for the Ninth Circuit, from the order dismissing the second count of [appellant’s] fourth amended complaint, and entered in this action on July 12, 1941.”

Actually, no order dismissing the second count was ever entered. Indeed, so far as the record shows, no order, judgment or decree of any kind was ever entered in this case. The opinion was not an order, judgment or decree. Its filing, therefore, did not constitute the entry of an order, judgment or decree; nor did the clerk’s statement that “said motions are granted” constitute such an entry. Thus, at the time the notice was filed, there was nothing from which an appeal could be taken.

A judgment dismissing an action is a final decision and hence is appealable. 2 An order which merely grants a motion to dismiss an action is not a final decision and is not appealable. 3 In this case, there was no motion to dismiss the action and, of course, no order granting such a motion, nor any judgment dismissing the action. The action is still pending in the District Court.

*867 Where a complaint sets forth, in separate counts, separate claims for relief, a judgment dismissing one of the counts is a final decision and hence is appealable, 4 but an order which merely grants a motion to that effect is not a final decision and is not appealable. 5 In this case, the complaint, although it contained two counts, set forth only one claim for relief. That was a claim for damages in the sum of $45,729.26, 6 with interest and costs. In the first count, the claim was predicated upon the common law. In the second count, it was predicated upon a statute. 7 Thus the complaint set forth, in separate counts, two grounds upon which relief was claimed, but set forth only one claim for relief. In this case, therefore, a judgment dismissing one count of the complaint, leaving the other count pending, would not be a final decision and would not be appealable. 8 Much less would an order which merely granted a motion to that effect be appealable.

Appeal dismissed.

Actually, there were two motions.

Judicial Code, § 128(a), 28 U.S.C.A, § 225(a).

City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390.

Reeves v. Beardall, 62 S.Ct. 1085, 86 L.Ed. —, decided May 11, 1942.

City and County of San Francisco v. McLaughlin, supra.

$52,000, less $6,270.74.

Securities Act of 1933, §§ 11 and 15, 15 U.S.C.A. §§ 77k and 77o.

Ex parte National Enameling & Stamping Co., 201 U.S. 156, 26 S.Ct. 404, 50 L.Ed. 707; Memphis Keeley Institute v. Leslie E. Keeley Co., 6 Cir., 144 F. 628; Sheppy v. Stevens, 2 Cir., 200 F. 946; United States v. Bighorn Sheep Co., 8 Cir., 276 F. 710. See, also, Louisiana Navigation Co. v. Oyster Commission, 226 U.S. 99, 33 S.Ct. 78, 57 L.Ed. 138; Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.