246 F2d 263 Holsinger v. City of Fresno

246 F.2d 263

Henry HOLSINGER, Chairman, State Water Rights Board, et al.,
Appellants,
v.
CITY OF FRESNO et al., Appellees.

No. 14986.

United States Court of Appeals Ninth Circuit.

June 18, 1957.

Edmund G. Brown, Atty. Gen., B. Abbott Goldberg, Deputy Atty. Gen., John Robert Burton, Deputy Atty. Gen Gavin M. Craig, Atty., State Water Rights Bd., Sacramento, Cal., for appellant.

Claude L. Rowe, C. M. Ozias, Fresno, Cal., for appellees.

Before DENMAN, Chief Judge, and POPE and HAMLEY, Circuit Judges.

PER CURIAM.

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1

This is an appeal from an order entered on May 24, 1955, enjoining the predecessor of appellant State Water Rights Board from continuing with certain hearings then being held, until the further order of the court. This order was entered in certain ancillary proceedings growing out of the extensive Rank v. Krug litigation, concerning water rights on the San Joaquin River, which has been pending in the state and federal courts since 1947.

2

Appellees have suggested to this court that the appeal should be dismissed for mootness. This suggestion is based on the fact that, on January 18, 1957, a judgment was entered in the principal action, one provision of which dissolves the preliminary injunction here under review, and dismisses the ancillary action in which it was obtained.

3

Appellants resist the suggestion that the appeal should be dismissed for mootness. They point out that, on January 25, 1957, appellees, proceeding in part according to Rule 52(b), Federal Rules of Civil Procedure (28 U.S.C.A.), moved to amend the judgment of January 18, 1957. Appellants contend that, by making this motion to amend, appellees destroyed the finality of that judgment, thus leaving the order appealed from in effect.

4

The motion to amend the judgment was argued before the district court on February 26, 1957. Examination of the transcript of that argument indicates that the motion to amend the judgment did not bring into question the provision thereof dissolving the preliminary injunction and dismissing the ancillary action. The judge, when questioned as to the possible effect of the motion on the finality of the judgment with respect to the preliminary injunction and ancillary action, said:

5

'I have no intention to bring back any temporary injunction. I am satisfied that the injunction should be dismissed. * * * As far as I am concerned, the injunction is dissolved. * * *'

6

Under the circumstances indicated above, the judgment of January 18, 1957, is to be regarded as final, in so far as it dissolves the preliminary injunction and dismisses the ancillary action. This being the case, the grievance which gave rise to this appeal has been terminated, and the appeal has been rendered moot.

7

The appeal is dismissed. Costs shall be allowed to appellees.