Maureen GARDNER, Appellant, v. J. J. NEWBERRY CO., Inc., Appellee, 239 F.2d 178

BONE, Circuit Judge. Defendant-appellee moved in the lower court “ * * * to dismiss the amended complaint of the Plaintiff herein upon the ground and for the reason that the same does not state a claim against Defendant upon which relief can be granted.” In an order the lower court provided that “the motion of defendant" corporation to dismiss be, and the same is hereby, granted.” Appellant’s appeal is “ * * * from that certain Order of Dismissal rendered in favor of the defendant * * * »

On numerous occasions this Court has held that an order which dismisses a complaint without dismissing the action, is not an appealable order, Williams v. Peters, 1956, 9 Cir., 233 F.2d 618 (and cases there cited), unless it appears that by dismissal of the complaint the court determined plaintiff has no right of action and that plaintiff, by appealing, is deemed to have elected to stand on his complaint. See Williams v. Peters, supra, at page 619, and cases there cited. A reading of the record now before this Court does not indicate the latter situation is present in this case.

We feel obliged to dismiss the instant appeal and remand the case to the lower court. If, upon this remand, appellant elects not to amend her complaint the lower court should enter a judgment or order dismissing the action from which judgment or order she has a right of appeal. See Asher v. Ruppa, 1949, 7 Cir., 173 F.2d 10, 11.

If, after our mandate goes down and an appropriate order or judgment is entered, appellant elects to appeal from such judgment or order, her appeal may be heard upon the present record and briefs filed with this Court, supplemented by a certified record of proceedings had in the District Court after receipt of our mandate. For the reason above stated the appeal is dismissed, without prejudice, and the case is remanded for proceedings not inconsistent with this opinion.