299 F. 2d 888 - Martinez v. Flores

As in our appeal No. 16,865, Martinez v. Flores et al., which we dismissed on May 2, 1960, with a simple minute entry order, we are again of the opinion that the appeal should be dismissed. Twice the district court has dismissed the complant, but never the action. There is a difference. Merritt-Chapman Scott Corp. v. City of Seattle, 9 Cir., 281 F.2d 896; Turnbull v. Cyr, 9 Cir., 184 F.2d 117. And we believe observance of the distinction has a sound basis, even though in this case it may be argued it is not worth while.

The last order below just is not final. Were the judge available who signed the order from which the appeal was attempted, undoubtedly the entry of a final order would be largely ceremonial. However, another judge should not so regard it. He should make his own independent determination because the decision has not yet progressed to the point of establishing the law of the case. If the cause comes here again, we shall be reviewing the merits of the second judge's determination, not the first one's. This is not to express any opinion on whether the last order attempting to dispose of the case was a correct or incorrect ruling. To do that would be premature.

The appeal is dismissed and the mandate will issue immediately.