A.C. Ross, District Director of Internal Revenue for the District of Georgia v. Harry T. Evans

Fifth Circuit

A.C. Ross, District Director of Internal Revenue for the District of Georgia v. Harry T. Evans

325 F.2d 160, 12 A.F.T.R.2d (RIA) 5944, 1963 U.S. App. LEXIS 3689

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 18, 1963

Docket20538_1

StatusPublished

Cited by12 cases

This text of 325 F.2d 160 (A.C. Ross, District Director of Internal Revenue for the District of Georgia v. Harry T. Evans) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

A.C. Ross, District Director of Internal Revenue for the District of Georgia v. Harry T. Evans, 325 F.2d 160, 12 A.F.T.R.2d (RIA) 5944, 1963 U.S. App. LEXIS 3689 (5th Cir. 1963).

Pincite

Opinion

PER CURIAM.

The appellee, Harry T. Evans, filed his complaint in the District Court for the Northern District of Georgia, against the appellant District Director, seeking to restrain the collection of a penalty which had been assessed against him by the Internal Revenue Service. A temporary restraining order was entered on December 5, 1962. By an order dated December 14, 1962, the temporary restraining order was continued in full force and effect until the further order of the court. This order was entered by consent of the parties. On January 21, 1963, the District Director filed a motion to dismiss the complaint. The District Director did not, by this motion or at any other time or in any other manner seek to dissolve the temporary restraining order. By its order dated February 8, 1963, the court denied the motion to dismiss. In its order the court referred to the consent restraining order and held that it should remain in effect.

The District Director has appealed from the order denying the motion to dismiss. An order denying a motion to dismiss is interlocutory and not appealable. Connell v. Dulien Steel Products, Inc., 5th Cir. 1957, 240 F.2d 414. The temporary restraining order was extended by consent. See Rule 65, Fed. Rules Civ.Proc. Where, as here, the temporary restraining order has been entered by consent until Ihe further order of the court, and. no application has been made to dissolve the restraining order, and no orders have been made with respect to the restraining order except to continue it in force, it will not have lost its character as a nonappealable temp *161 orary restraining order and become converted into an appealable preliminary injunction. 28 U.S.C.A. § 1292.

It appearing that there is no appeal-able order, no jurisdiction is present and, without reaching the merits, the appeal will be

Dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

The appellee, Harry T. Evans, filed his complaint in the District Court for the Northern District of Georgia, against the appellant District Director, seeking to restrain the collection of a penalty which had been assessed against him by the Internal Revenue Service. A temporary restraining order was entered on December 5, 1962. By an order dated December 14, 1962, the temporary restraining order was continued in full force and effect until the further order of the court. This order was entered by consent of the parties. On January 21, 1963, the District Director filed a motion to dismiss the complaint. The District Director did not, by this motion or at any other time or in any other manner seek to dissolve the temporary restraining order. By its order dated February 8, 1963, the court denied the motion to dismiss. In its order the court referred to the consent restraining order and held that it should remain in effect.

The District Director has appealed from the order denying the motion to dismiss. An order denying a motion to dismiss is interlocutory and not appealable. Connell v. Dulien Steel Products, Inc., 5th Cir. 1957, 240 F.2d 414. The temporary restraining order was extended by consent. See Rule 65, Fed. Rules Civ.Proc. Where, as here, the temporary restraining order has been entered by consent until Ihe further order of the court, and. no application has been made to dissolve the restraining order, and no orders have been made with respect to the restraining order except to continue it in force, it will not have lost its character as a nonappealable temp *161 orary restraining order and become converted into an appealable preliminary injunction. 28 U.S.C.A. § 1292.

It appearing that there is no appeal-able order, no jurisdiction is present and, without reaching the merits, the appeal will be

Dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

325 F.2d 160, 12 A.F.T.R.2d (RIA) 5944, 1963 U.S. App. LEXIS 3689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ac-ross-district-director-of-internal-revenue-for-the-district-of-ca5-1963.

Opinion

Related

Cite This Page — Counsel Stack