HOINESS v. UNITED STATES et al., 165 F.2d 504

MATHEWS, Circuit Judge. Appellant (Earl P. Hoiness) filed a libel in personam against appellees (the United States, the American South African Line, Incorporated, and others) in the District Court of the United States for the Northern District of California. The named appellees answered the libel. The others did not ■answer and, so far as the record shows, were not served with process. A trial was had. Thereafter, without considering the evidence, the court concluded that it lacked jurisdiction, and that the libel, therefore, ■should be dismissed.

These conclusions were stated by the court in an opinion filed ■on August 5, 1946. 2Thereupon, on August 5, 1946, the court entered an order dismissing the libel. The order of August 5, 1946, was a ■final decision, within the meaning of § 128 (

a) of the Judicial Code, 28 U.S.C.A. § 225 (a), and was appealable, but no appeal was taken therefrom. The concluding sentence of the order of August 5, 1946, directed appellees’ counsel to submit findings of fact and conclusions of law. There was no apparent reason for súch a direction. The court’s conclusions of law were stated in its opinion. If its conclusions were correct, no findings of fact were necessary, for its conclusions were based on the libel, not on the evidence. No question of fact was considered or decided.

A document entitled “Findings of fact and conclusions of law” was filed on October 14, 1946, An examination of the document reveals that the so-called findings stated therein were not findings of fact. The stated conclusions were that the libel failed to state a claim upon which relief could be granted, and that the court was “without jurisdiction to entertain the cause on the merits.” There was also filed on October 14, 1946, a so-called decree purporting to dismiss the libel which, in fact, was dismissed by the order of August 5, 1946.

From the so-called decree of October 14, 1946, this appeal was taken on October 18, 1946. As heretofore stated, the order of August 5, 1946, was a final decision. There was no other final decision in this case. No other final decision was necessary. The so-called decree of October 14, 1946, was not a final decision and was not appealable. Appeal dismissed.

We quote from the opinion: “Examination of the libel reveals that allegations of facts essential to the court’s jurisdiction have been omitted. * * ::: It is obvious, therefore, that the libel is fatally defective. * * * It follows that the libel must he dismissed for lack of jurisdiction.” 75 F.Supp. 289. The order of August 5, 1946, was as follows: “It is ordered: That the libel herein is dismissed for lack of jurisdiction, and that respondents [appellees] have judgment for costs.

Counsel for respondents will submit findings of fact and conclusions of law in accordance with the rules of the court and the opinion filed herewith.” Liberty Mutual Ins. Co. v. Pillsbury, 9 Cir., 154 F.2d 559. See footnote 2. See footnote 1. Whether this document was submitted by counsel or prepared by the court without the aid of counsel the record does not show.

The so-called decree of October 14, 1946, was “that the [District] Court has no jurisdiction over the subject matter of the action, and that the libel be dismissed.” The petition for appeal stated that appellant, “being aggrieved by the rulings, findings, judgment and decree made and entered herein on October 14, 1946, * =5 * ¿(0es hereby claim an appeal from said rulings, findings, judgment and decree * =:i * and prays that his said appeal may be allowed.” Said appeal was allowed on October 18, 1946. Liberty Mutual Ins. Co. v. Pillsbury, supra.