289 F2d 315 McWhinney v. P Cain

289 F.2d 315

61-1 USTC P 9406

Robert W. McWHINNEY, Plaintiff-Appellant
Robert P. CAIN, Group Supervisor, Group 11, Internal Revenue
Service, District of Pittsburgh, Pennsylvania, and
the United States of America.

No. 13412.

United States Court of Appeals Third Circuit.

Argued Feb. 21, 1961.
Decided April 24, 1961.

Robert W. McWhinney, Pittsburgh, Pa. (Goehring, McWhinney & Grubbs, Pittsburgh, Pa., on the brief), for appellant.

Meyer Rothwacks, Washington, D.C. (Hubert I. Teitelbaum, U.S. Atty., Daniel J. Snyder, Asst. U.S. Atty., Pittsburgh, Pa., Abbott M. Sellers, Acting Asst. Atty. Gen., Lee A. Jackson, John J. McGarvey, Attys., Department of Justice, Washington, D.C., on the brief), for appellees.

Before KALODNER, STALEY and FORMAN, Circuit Judges.


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This is an appeal from an Order of the United States District Court for the Western District of Pennsylvania denying, without prejudice, plaintiff's application for a preliminary injunction restraining the defendants, the United States and its agent, Cain, from taking any action to endorse Internal Revenue summonses calling for the production of certain data, served on plaintiff and others. Notice of appeal was filed on October 6, 1960 and the following day, this Court, on plaintiff's motion, granted a stay order restraining defendants from any and all proceedings to enforce the summonses, pending disposition of this appeal.


Under the provisions of Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C., where actions are tried to the court without a jury it is requred that 'the court shall find the facts specially and state separately its conclusions of law thereon' except in such cases where 'an opinion or memorandum * * * is filed' and the 'findings of fact and conclusions of law appear therein.'


In the instant case the District Court did not file an Opinion or Memorandum nor did it make Findings of Fact or state Conclusions of Law thereon.


The record further discloses that the plaintiff was not afforded required hearing.


For the reasons stated the Order of the District Court will be vacated and the cause remanded with directions to the District Court to proceed in accordance with this Opinion.


It is further ordered that the stay order entered by this Court on October 7, 1960 will remain in effect until our further order.