Donovan v. Jeffcott

MATHEWS, Circuit Judge.

In Jeffcott v. Donovan, 9 Cir., 135 F.2d 213, we reversed a judgment of the District Court of the United States for the District of Arizona and remanded this case to that court for further proceedings.

Our mandate was issued on August 3, 1943. On August 27, 1943, plaintiff, Edward J. Donovan, moved the District Court for leave to amend his amended complaint. An order denying the motion was entered on September 23, 1943. On September 27, 1943, judgment was entered as follows:

“It is Hereby Ordered, Adjudged and Decreed that plaintiff herein recover nothing against the said defendants [David C. Jeffcott and Elsie Jeffcott], or either of them, and that the said defendants recover of plaintiff the sum of Eight Hundred Sixty-four and 72/100 Dollars ($864.72) costs taxed and allowed by said Circuit Court of Appeals for the Ninth Circuit, and that said defendants have execution therefor.”

That judgment was a final decision, within the meaning of § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a), and hence was appealable, but no appeal was taken therefrom.

On October 1, 1943, plaintiff moved the District Court to vacate the judgment of September 27, 1943, and to rehear the motion of August 27, 1943. An order denying the motion of October 1, 1943, was entered on December 13, 1943. From that order plaintiff has appealed.

That order was not a final decision, within the meaning of § 128(a) of the Judicial Code, 28 U.S.C.A. § 225(a), and was not appealable. Republic Supply Co. v. Richfield Oil Co., 9 Cir., 74 F.2d 909, 910; Lack v. Western Loan & Building Co., 9 Cir., 146 F.2d 852. See, also, International Bank v. Securities Corporation, 59 App.D.C. 72, 32 F.2d 968; Smith v. United States, 7 Cir., 52 F.2d 848; Glinski v. United States, 7 Cir., 93 F.2d 418, 419; Andris v. DuPont Cellophane Co., 7 Cir., 93 F.2d 421; In re Colwell, 7 Cir., 93 F.2d 946, 948.

Appeal dismissed.