225 F2d 649 Arnhold v. United States
225 F.2d 649
Arthur A. ARNHOLD et al., Appellants,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
Sept. 1, 1955.
Ferguson & Burdell, W. H. Ferguson, W. Wesselhoeft, Donald McL. Davidson, Seattle, Wash., for appellants.
Warren E. Burger, Asst. Atty. Gen., Alan S. Rosenthal, Paul A. Sweeney, Samuel D. Slade, Sondra K. Slade, Attorneys, Dept. of Justice, Washington, D.C., Charles P. Moriarty, U.S. Atty., Francis N. Cushman, Asst. U.S. Atty., Seattle, Wash., for appellee.
Before BONE, ORR and HASTIE, Circuit Judges.
On March 1, 1954, the trial court entered a judgment on the pleadings dismissing the fourth amended complaint insofar as it pertained to the United States of America as a party on the ground that the said fourth amended complaint failed to state a claim against the United States of America upon which relief could be granted. Other defendants were joined in the action but the complaint was not dismissed as to them. The trial court did not at that time make a determination that there was no just reason for delay in order to give the judgment of dismissal the finality necessary to permit an appeal therefrom as required by Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A. Nevertheless, appellants, on March 31, 1954, filed a notice of appeal and thereafter attempted to perfect an appeal to this court. Knowledge of this defect being called to the attention of appellants they then petitioned the trial court for a determination that there was no good reason for delay. The determination was made by the trial court, a judgment of dismissal was then entered and an appeal therefrom taken. The second appeal was not given a new number.
The appeal attempted to have been taken by the filing of the notice of appeal on March 31, 1954 is dismissed.