Monge v. Smyth , 198 F.2d 749 ( 1952 )

198 F.2d 749

52-2 USTC P 9480

MONGE,
v.
SMYTH.

No. 13508.

United States Court of Appeals Ninth Circuit.

Sept. 2, 1952.

Wareham Seaman, Stockton, Cal., for appellant.

No other appearances were entered.

Before MATHEWS, BONE and ORR, Circuit Judges.

MATHEWS, Circuit Judge.

1

On July 5, 1951, appellant, Bartolomeo Monge, commenced a civil action against appellee, James G. Smyth, Collector of Internal Revenue for the First District of California, by filing a complaint in the United States District Court for the Northern District of California.

2

On September 6, 1951, appellee filed a motion to dismiss the complaint. There was no motion to dismiss the action. See Form 19 of the Appendix of Forms following Rule 86 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

3

On October 15, 1951, the District Court entered an order which granted the motion to dismiss the complaint, but did not dismiss it. 100 F.Supp 821. Such an order is not appealable. See Turnbull v. Cyr, 9 Cir.,184 F.2d 117.

4

Even an order granting a motion to dismiss an action, but not dismissing it, is not appealable. See Blanco v. United States, 9 Cir., 184 F.2d 117. However, as indicated above, there was here no motion to dismiss the action, no order granting such a motion and, of course, no order dismissing the action. The action is still pending in the District Court.

5

Appellant did not appeal from the order of October 15, 1951, but did, on October 19, 1951, file in the District Court a petition for rehearing. On April 8, 1952, the District Court entered an order denying the petition for rehearing. Appellant has appealed from the order denying the petition. Such an order is not appealable. See In re Gelino's, 7 Cir., 51 F.2d 875; Stradford v. Wagner, 10 Cir., 64 F.2d 749. The appeal must therefore be dismissed.

6

The dismissal will be without prejudice to the right of appellant to move in the District Court for leave to amend his complaint; or to move in the District Court for the substitution of Glen T. Jamison, the present Collector of Internal Revenue for the First District of California, as defendant in this action, in the place and stead of appellee, James G. Smyth; or to move in the District Court for the entry of a final judgment or a final appealable order.

7

Appeal dismissed without prejudice; mandate to issue forthwith.