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6337
Annotations: Assignee- Levy
Redemption of
Properly: Assignee
[59-1
USTC ¶9165]J. Franklin Spruill, et al., Appellants v. Theodore M.
Cage, Appellee
(CA-6),
U. S. Court of Appeals, 6th Circuit, No. 13526, 262 F2d 355,
12/9/58, Dismissing appeal from unreported order of DC, Ohio
[1954 Code Sec. 6337]
Sale of seized property: Redemption after sale: Procedure.--After
the purchasers at a tax sale had refused to accept an offer of
redemption made by the individual to whom the delinquent taxpayer
had quitclaimed his interest, the individual sued them for a
decree that his right of redemption be adjudged to exist. An order
denying the defendants' motion for summary judgment was not
appealable, since the motion was in substance a motion to dismiss
and an order overruling such motion is not a final appealable
judgment.
Steel
& Finley, 2522
National
Tower
,
Akron
,
Ohio
, for appellants. Alexander Russell,
28 South Howard Street
,
Akron
,
Ohio
, for appellee.
Before
MARTIN and MILLER, Circuit Judges, and GOURLEY, District Judge.
Order
MILLER,
Circuit Judge:
Real
estate located in
Summit County
,
Ohio
, owned by Samuel Barner and Mitchell Wadley, was sold by the
District Director of Internal Revenue for nonpayment of delinquent
Internal Revenue taxes. A certificate of sale was issued to the
purchasers, the appellants herein. Before the statutory right of
redemption expired Barner and Wadley quit-claimed their interest
in the property to the appellee, who within the redemption period
of one year attempted to exercise the right of redemption.
Appellants refused to accept the offer of redemption and the
appellee instituted this action praying for a judgment or decree
declaring his rights and that his right of redemption be adjudged
to exist, and enforced.
[Summary
Judgment Denied]
Appellants
moved for summary judgment praying that they be given a judgment
based on "the pleadings or the petition of the plaintiff be
stricken." The District Judge overruled the motion without
explanatory reasons or citation of authority in support of the
ruling. He later overruled appellants' motion for a rehearing on
the motion for summary judgment. No judgment was subsequently
entered. This appeal followed, seeking a review of the orders
overruling the motion for summary judgment and a rehearing of the
same.
We
are of the opinion that the rulings complained of are not final
decisions of the district court appealable at this time. Sec.
1291, Title 28, U. S. Code; Marcus Breier Sons, Inc. v. Marvlo
Fabrics, Inc., 173 Fed. (2d) 29, C. A. 2nd; McGrath v.
Hunt, Hill & Betts, 194 Fed. (2d) 529, C. A. 2nd; Morgenstern
Chemical
Co.
v. Schering Corp., 181 Fed. (2d) 160, C. A. 3rd; Diaz v.
Crom, 195 Fed. (2d) 517, C. A. 5th; Dutton v. Cities
Service Defense Corp., 197 Fed. (2d) 458, C. A. 8th.
Appellants'
motion, although styled by them as a motion for summary judgment,
was made before the filing of an answer and is, in substance, a
motion to dismiss. Jones v. St. Paul Fire & Marine Ins.
Co., 108 Fed. (2d) 123, 125, C. A. 5th. It specifically prays
for a judgment "based on the pleadings." An order
overruling a motion to dismiss is not a final judgment and is not
appealable because the case still stands for pleadings and issue
and for trial thereon. Catlin v.
United States
, 324
U. S.
229, 236; Southeastern Greyhound Lines v. McCafferty, 169
Fed. (2d) 1, 3, C. A. 6th; Connell v. Dulien Steel Products,
240 Fed. (2d) 414, 417, C. A. 5th.
IT
IS ORDERED that the appeal be dismissed.
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