United States v. State of Arizona
206 F.2d 159
9th Cir.
1953
Check Treatment

*1 Gen., Burger, Atty. Warren E. Asst. OF Washington, C., Scruggs, D. STATES STATE Edward W. UNITED U. et al. ARIZONA Atty., Phoenix, Ariz., S. Sweeney, Paul A. No. Morton Hollander and M. Heu- Massillon ser, Atlys., Dept, Justice, Washington, Court of United States C.,D. appellant. for Circuit. Ninth Jones, Atty. Ross F. Ir- Gen. of 30, 1953. win Cantor, Timothy Parkman, D. Assts.

Atty Gen., Arizona, appellees. DENMAN, Judge, Before Chief Judges. ORR and DENMAN, Judge. Chief This is an from a missing party complaint a third seeking to have the State of public Arizona and its agencies, the Ari zona National Guard and the Ari Commission, zona Game and Fish indemni fy plain the United States in the event tiff in the main action was awarded dam ages personal injuries caused United States. General of Arizona

brought proceeding to dismiss this third party complaint, stating his motion first parties that his three “move the court for Party the Third Com- plaint” stating grounds and conclud- “Wherefore, ing Party the Third Defend- pray ants the foregoing Motion be granted.” It will be noted that this proceeding solely to dismiss the argued by General and distinct from another ceeding to dismiss the third of the United States initiated sua the district later discussed. first to dismiss the complaint, the court rendered and entered following on this matter ar- gued to it. Defendants’ Mo-

tion to Dismiss the Com- plaint regularly comes on for hearing day. O’Mara, Esq., F. As- John Attorney, sistant S. U. Munch, Philip Esq., the Government. Assistant General Arizona, appears behalf of *2 160 prejudice mo- defendants.” Third-Party Said to the third Defendants. respective seen, by As duly argued the United States did

tion is now counsel, parte in this second ex from this order ceeding. that the Motion “It is Ordered Third-Party Defendants to States was The error of United isit Third-Party complaint be and 61, not one in Rule Fed.Rules considered * * sup- (Emphasis '*.” Civ.Proc., 2111 and 28 U.S.C. 28 U.S.C.A. plied.) affect contrary, parties. of the single From order the finality right of Arizona the substantial December dismissing cross action as follows: his notice the United States. Appeal Notice plain United It is ofcourse that if the hereby given is “Notice ignorant of had not been America, the cross- United appealed from the the law he have herein, hereby appeals to complainant contended that second order. Circuit Court of the of Arizona should be robbed [singu- Order from the Ninth Circuit gained from States District Court United lar] as construing the two distinct orders entered on the and, by if they mere were one Malini’s ^ the de- Motion of granting the mo legerdemain, omit all reference Arizona to dismiss fendant complaint make tion to dismiss the Complaint against two orders read: “The (Emphasis Defendants. granted, and it to dismiss supplied.) and it is that this case be Further Ordered say, *." is to cure That appealable rewriting error of the United States had the same The United so orders error “Presto concept that such order is disappeared, chango,' attorneys in fourteen our as the City County of San Francisco “failure Here was no de Cir., our McLaughlin, 9 F.2d v. 9 from which the scribe the order succeeding taken,” thirteen cases.1 as in Shannon v. Retail [was] Ass'n, Cir., 7 128 F.2d Clerks Int. sua second Cir., 156 Delivery Co., 9 Porter v. Borden’s the dis- court. It concerned appeal exactly The notice F.2d distin- third case as missal dismissing the com described party complaint,' the third guished separate plaint I failed describe the persistently long recog- so

a distinction . t dismissing the case. opinions. the above nized this court in as Wilson v. South such a case Nor concluding Following after the the comma Cir., Railway Co., 5 F.2d 147 ern words of the order stated that made the granted,” —“it fur- judgment appealed "from Ordered that “and It further ther order final 1944.” action on in this and it dismissed without this case be California, Cir., 865; Cir., 9 Gibson, Wright v. State 9 128 F.2d Newman v. 515; Tlingit Cal Newman v. State of 184 F.2d Indians of Tribe Tee-Hit-Ton 392, 393; Cir., ifornia, Olson, Cir., Weld 9 185 F.2d 144 9 rel. U. S. v. ex Alaska States, Cir., 874; Cir., F.2d Bunn, 347; v. 9 196 9 149 on United Cashion v. F.2d 749; Smyth, Cir., Monge F.2d 9 198 969; Peoples v. Bank v. Federal 109; 851; Gray, Cir., Cir., Bank, 201 McAfee Reserve Cir., States, Liquidating F. Lemke v. v. Consolidated Prickett Amusement 8; St. Louis Cir., See also: 2d 406. Corp., Turnbull v. Distributing Film Cor 117; v. Paramount Cyr, Co. Blanco 117; poration, on inevitable concomitant demurrer, called construed and it is notice was date the at an demurrer itself. to a plying *3 decisions en date. Here are earlier precise That was the situation here. If of and the same date on tered points the made of State specifically good (as on motion to dismiss were not men does held), then the United never that is. tion the one action, could state a cause of and the case ripe was If such dismissal. be de- should not The of Arizona motion, view of of court’s the merits right as considered of the substantial

prived duty was its to conclude the case 2111, arising 28 U.S.C. § entirety, there. The including in its in not error of the case, proper of dismissal ruling was dismissing the appealing from the order particular upon this motion to dismiss. Cf. con- jurisdiction to we have no case. Since Ledbetter Co., v. Farmers Bank & Trust attempted appeal from the or- it, the sider Cir., 142 F.2d 147. party dismissing the third der say To that the action dismissed. was such two, there completely that distinct orders, wholly operative unrealistic. The (dissenting). Judge of words the order were as follows: “The opinion person merely reading the No to dismiss the Third- transpired would know here ** * Party complaint speaks opinion below. The It Further Ordered that proceeding”, of “another “first * * *." it is Plainly that appear ceeding”, making it that thus one order. but separate and distinct court entered two or- Again, pretend thing. cannot that It did no such ders. fully appeal advised this notice of upon The trial court was called to act on just was undertaking party motion to dismiss the third com- Obviously from. was di- In plaint. the view which consideration at rected the dismissal of the case which legal questions pre- look in, of, contained and a sented, only appropriate took possible. 1952”. respects important, In the here a motion What have done is to dis- is like the old demurrer known “ * regard Rule 61: The court at practice under common law and every stage must disre- great the codes of the states. under any gard error or defect in the proceeding cases, number of er a de not affect rights give does no than murrer more com parties.” They disregarded § plaining opportunity to amend. “ Title 28: the court shall when the court’s view of the law is after an examination of the possibly such state regard record without to errors or defects action, duty cause then it do not affect the the court to order final dismissal of the ac parties.” Joaquin at once. Cf. tion San Kings & Irrigation River Canal & Co. v. how Stanislaus far out line this court Just County, 155 Cal. 99 P. comparing Ban observed this decision Crump Code Pleading, croft’s Hill, 516. In that with §§ case, disposition Boykin such 38,1 Huff, sort App.D.C. is an enough In that case no notice what court said: “It is true starting up ever was but the within the time jurisdictional good prac- held the because fixed is and that signed requires conformity a waiver of notice was filed. to the tice formal intended, appeal must Clarke, 105 stand what was 865,2 Martin v. dismissed! v. be A.L.R. Wilson Ry. Southern opinion disregard Not has the notice case the In the last 2111, supra, ed 61 and it has Rule appeal “from the astound them a twist little short 10, 1944.” What this action ing. for the United It this: Counsel was an on that date “ignorant overruling new trial. a motion for a law”, “error”, (although it is has made an appeal from was held to be anyone suggested was misled *4 27, 1944, saying: April ment of “error”). This error appeal was the notice of is clear that finality”. “[I]f substantial “the judg a review intended to obtain be If the State of Arizona “should robbed April which ment of opponent’s gained the cause.” in if the two orders as construing experienced (Italics added.) That court one”, they lose its “substan were in difficulty perceiving in no rights”. tial ap appeal from “the tended was to changes I if is misled can how one or see pealable judgment entered”.3 position disadvantage his to his error, merely opponent’s re- have some If the notice error, of which vested interest in that to the order ferred court, there, October, 1952,” stopped “robbed”. if should to misled, is going with the entire which has not been or it had followed if misled, verbatim, which order, an also I take it interest in right” vested it hard to “substantial or a found void would have error, legerde in the or- that is neither peal. referring to But because main, law, anything nor illustra has der, appellant mentioned nor theory justice”4 “sporting only, seem that been tion it would designed to irregularity, although which guilty courts. or failed to under- end in the federal has been misled one requirements a sufficient notice it would the court held to be of the Rule. But wholly state, harking as Rule failed to the for- think be back to we requires, rigorism 73(b) court to of an earlier out- “the malistic travesty upon said of this is taken.” well as moded ap justice, extremely simple “It is obvious that the court lack: hold that the to required by pealed procedure since itself a the Rule is Jumbo, could not have been ment of Mumbo that the fail- kind formalistically comply difficult Another decision with it de- elsewhere.” ure rights.” with the one is to reconcile feats Delivery Dairy v. Borden’s Porter 9 prisoner’s letter that case 2. followed held a sufficient notice district Retail Clerk’s International Shannon v. joined appeal. in In a decision Ass’n, Cir., P. Groner, Judges Rutledge, Vinson and failure to it was said: “That not contain all said: it did from which describe specified in Rule III the details light taken, be viewed must *** is not material. It set forth although there were of the fact things, namely, identity essential seemingly separate orders, it would and of appeal. and the the cause them as to describe be better prose- Neither part. intention cuting modified On this rec nor the officers court could have hardly justified we would ord missing prejudiced by any or misled been because an [121 873.] omissions.” in the notice of date appeal.” why to understand is difficult 3. Pound, Popular employ “The Causes of here the same Roscoe Cutting Bullerdick, with the Administration it did Dissatisfaction sense Cir., (1906) Justice,” A.B.A.Rep.