United States v. State of Arizona

206 F.2d 159 UNITED STATES v. STATE OF ARIZONA et al. No. 13722. United States Court of Appeals Ninth Circuit. June 30, 1953. Warren E. Burger, Asst. Atty. Gen., Washington, D. C., Edward W. Scruggs, U. S. Atty., Phoenix, Ariz., Paul A. Sweeney, Morton Hollander and Massillon M. Heuser, Attys., Dept. of Justice, Washington, D. C., for appellant. Ross F. Jones, Atty. Gen. of Arizona, Irwin Cantor, Timothy D. Parkman, Assts. Atty Gen., of Arizona, for appellees. Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal from a judgment dismissing a third party complaint of the United States seeking to have the State of Arizona and its public agencies, the Arizona National Guard and the Arizona Game and Fish Commission, indemnify the United States in the event the plaintiff in the main action was awarded damages for personal injuries caused by the United States. 2 The Attorney General of Arizona brought a proceeding to dismiss this third party complaint, his motion first stating that his three parties "move the court for an order dismissing the Third Party Complaint" stating his grounds and concluding "Wherefore, the Third Party Defendants…

This is an appeal from a judgment dismissing a third party complaint of the United States seeking to have the State of Arizona and its public agencies, the Arizona National Guard and the Arizona Game and Fish Commission, indemnify the United States in the event the plaintiff in the main action was awarded damages for personal injuries caused by the United States.

The Attorney General of Arizona brought a proceeding to dismiss this third party complaint, his motion first stating that his three parties “move the court for an order dismissing the Third Party Complaint” stating his grounds and concluding “Wherefore, the Third Party Defendants pray that the foregoing Motion be granted.”

It will be noted that this proceeding solely to dismiss the complaint is the only one initiated and argued by the Attorney General and is distinct from another proceeding to dismiss the third party action of the United States initiated sua sponte by the district court, later discussed.

On this first proceeding to dismiss the complaint, the court rendered and entered the following order on this only matter argued to it.

From this single order the United States Attorney for Arizona, on December 1,…

(dissenting).

No person merely reading the opinion here would know what transpired in the court below. The opinion speaks of a “first proceeding”, and of “another proceeding”, thus making it appear that the court entered two separate and distinct orders. It did no such thing.

The trial court was called upon to act on a motion to dismiss the third party complaint. In consideration of the view which the judge look of the legal questions presented, he took the only appropriate action possible.

In the respects here important, a motion to dismiss is like the old demurrer known to the practice under the common law and under the codes of the states. In the greater number of cases, the sustaining of a demurrer does no more than give the complaining party an opportunity to amend. But when the court’s view of the law is that such party cannot possibly state a cause of action, then it is the duty of the court to order final dismissal of the action at once. Cf. San Joaquin & Kings River Canal & Irrigation Co. v. Stanislaus County, 155 Cal. 21 , 99 P. 365, 368 . Bancroft’s Code Pleading, §§ 226, 516. In that sort of case, such final disposition is an inevitable concomitant of the sustaining…