United States v. State of Arizona

206 F.2d 159, 1953 U.S. App. LEXIS 2729

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 1953
• Docket: 13722
• Status: Published

Opinions

DENMAN, Chief Judge.

This is an appeal from a judgment dismissing a third party complaint of the United States seeking to have the State of Arizona and its public agencies, the Arizona National Guard and the Arizona Game and Fish Commission, indemnify the United States in the event the plaintiff in the main action was awarded damages for personal injuries caused by the United States.

The Attorney General of Arizona brought a proceeding to dismiss this third party complaint, his motion first stating that his three parties “move the court for an order dismissing the Third Party Complaint” stating his grounds and concluding “Wherefore, the Third Party Defendants pray that the foregoing Motion be granted.”

It will be noted that this proceeding solely to dismiss the complaint is the only one initiated and argued by the Attorney General and is distinct from another proceeding to dismiss the third party action of the United States initiated sua sponte by the district court, later discussed.

On this first proceeding to dismiss the complaint, the court rendered and entered the following order on this only matter argued to it.

“The Third-Party Defendants’ Motion to Dismiss the Third-Party Complaint comes on regularly for hearing this day. John F. O’Mara, Esq., Assistant U. S. Attorney, is present for the Government. Philip Munch, Esq., Assistant Attorney General of the State of Arizona, appears on behalf of the Third-Party Defendants. Said motion is now duly argued by respective counsel, and

“It is Ordered that the Motion of the Third-Party Defendants to dismiss the Third-Party complaint be and it is granted, * * '*.” (Emphasis supplied.)

From this single order the United States Attorney for Arizona, on December 1, 1952, filed his notice of appeal as follows:

Notice of Appeal

“Notice is hereby given that the United States of America, the cross-complainant herein, hereby appeals to the Circuit Court of Appeals for the Ninth Circuit from the Order [singular] of the United States District Court entered on ^ the 6th day of October, 1952, granting the Motion of the defendant State of Arizona to dismiss the Third-Party Complaint against the Third-Party Defendants. (Emphasis supplied.)

This is not an appealable order, The United States Attorney had the same erroneous concept that such an order is appealable as the fourteen attorneys in our case of City and County of San Francisco v. McLaughlin, 9 Cir., 9 F.2d 390, and our thirteen succeeding cases.¹

The second proceeding was initiated sua sponte by the court. It concerned the dismissal of the third party case as distinguished from the third party complaint,' a distinction so long and persistently recognized by this court in the above opinions. Following the comma after the concluding words of the order dismissing the complaint —“it is granted,” the court made the further order “and It is further Ordered that this case be and it is dismissed without prejudice to the third party defendants.” As seen, the United States did not appeal from this order in this second ex parte proceeding.

The error of the United States was not one considered in Rule 61, Fed.Rules Civ.Proc., 28 U.S.C.A. and 28 U.S.C. § 2111 which does not affect the substantial rights of the parties. On the contrary, it gave Arizona the substantial right of finality to the order dismissing the cross action of the United States.

It is of course plain that if the United States Attorney had not been ignorant of the law he would have appealed from the second order. It is contended that the State of Arizona should be robbed of the advantage gained from its opponent’s error by construing the two distinct orders as if they were one and, by Malini’s mere legerdemain, omit all reference to the motion to dismiss the complaint and make the two orders read: “The motion * * * to dismiss * * * is granted, and it is Further Ordered that this case be and it is dismissed * * *." That is to say, cure the error of the United States rewriting the court’s two orders so the error “Presto chango,' has disappeared,

Here was no “failure to correctly describe the order from which the appeal [was] taken,” as in Shannon v. Retail Clerks Int. Ass'n, 7 Cir., 128 F.2d 553, 555, and Porter v. Borden’s Delivery Co., 9 Cir., 156 F.2d 798. The notice of appeal exactly described the order dismissing the complaint. It failed to describe the separate order dismissing the case.

Nor is it such a case as Wilson v. Southern Railway Co., 5 Cir., 147 F.2d 165, 166, where the notice of appeal stated that it appealed "from the final judgment entered in this action on June 10, 1944.” There, because no final judgment was entered on that date the notice was construed as applying to a final judgment entered at an earlier date. Here are two decisions entered on the same date and the notice of the United States specifically appealed from the one not appealable and does not mention the one that is.

The State of Arizona should not be deprived of the substantial right as considered in Rule 61 and 28 U.S.C. § 2111, arising from the error of the United States in not appealing from the order dismissing the case. Since we have no jurisdiction to consider it, the attempted appeal from the order dismissing the third party complaint is dismissed.

1 . Wright v. Gibson, 9 Cir., 128 F.2d 865; Tee-Hit-Ton Tribe of Tlingit Indians of Alaska ex rel. U.S. v. Olson, 9 Cir., 144 F.2d 347; Cashion v. Bunn, 9 Cir., 149 F.2d 969; Peoples Bank v. Federal Reserve Bank, 9 Cir., 149 F.2d 850, 851; Prickett v. Consolidated Liquidating Corp., 9 Cir., 180 F.2d 8; Turnbull v. Cyr, 9 Cir., 184 F.2d 117; Blanco v. United States, 9 Cir., 184 F.2d 117; Newman v. State of California, 9 Cir., 184 F.2d 515; Newman v. State of California, 9 Cir., 185 F.2d 392, 393; Weldon v. United States, 9 Cir., 196 F.2d 874; Monge v. Smyth, 9 Cir., 198 F.2d 749; McAfee v. Gray, 9 Cir., 201 F.2d 109; Lemke v. United States, 9 Cir., 203 F.2d 406. See also: St. Louis Amusement Co. v. Paramount Film Distributing Corporation, 8 Cir., 156 F.2d 400.