Monge

On July 5, 1951, appellant, Bartolomeo Monge, commenced a civil action against appellee, James G. Smyth, Collector of Internal Revenue for the First District of California, by filing a complaint in the United States District Court for the Northern District of California.

On September 6, 1951, appellee filed a motion to dismiss the complaint. There was no motion to dismiss the action. See Form 19 of the Appendix of Forms following Rule 86 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

On October 15, 1951, the District Court entered an order which granted the motion to dismiss the complaint, but did not dismiss it. 100 F.Supp. 821 . Such an order is not appealable. See Turnbull v. Cyr, 9 Cir, 184 F.2d 117 .

Even an order granting a motion to dismiss an action, but not dismissing it, is not appealable. See Blanco v. United States, 9 Cir, 184 F.2d 117 . However, as indicated above, there was here no motion to dismiss the action, no order granting such a motion and, of course, no order dismissing the action. The action is still pending in the District Court.

Appellant did not appeal from the order of October 15, 1951, but did, on October 19, 1951, file in the District Court a…