United States v. United States District Court in and for Southern Dist. Of California, Northernd Division

206 F.2d 303 UNITED STATES, v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DIST. OF CALIFORNIA, NORTHERND DIVISION, et al. No. 13891. United States Court of Appeals Ninth Circuit. Aug. 4, 1953. William H. Veeder, Sp. Asst. to Atty. Gen., Washington, D.C., for appellant. Claude L. Rowe, Fresno, Cal., for appellees. Before STEPHENS, ORR, and POPE, Circuit Judges. STEPHENS, Circuit Judge. 1 This case originated in this court and arises from the pendency in the United States District Court for the Southern District of California, Norther Division, of the case entitled Rank v. Krug (See 90 F.Supp. 773 .) The United States pursuant to leave granted filed its petition with us for the issuance of the writ of prohibition or in the alternative for a writ of mandamus, to be directed to Judge Hall, the presiding judge in the Rank v. Krug case. We granted an order to show cause why an order of Judge Hall's, made April 24, 1953, which amended a former order, should not be vacated, and we fruther ordered that, pending hearing on the show cause order, the order of April 24, 1953 should be vacated in part. 1 2 Thereafter, Judge Hall filed a motion to strike certain portions of Petitioner's…

This case originated in this court and arises from the pendency in the United States District Court for the Southern District of California, Northern Division, of the case entitled Rank v. Krug (See 90 F. Supp. 773 .) The United States pursuant to leave granted filed its petition with us for the issuance of the writ of prohibition or in the alternative for a writ of mandamus, to be directed to Judge Hall, the presiding judge in the Rank v. Krug case. We granted an order to show cause why an order of Judge Hall’s, made April 24, 1953, which amended a former order, should not be vacated, and we further ordered that, pending hearing on the show cause order, the order of April 24, 1953 should be vacated in part. 1

*305 Thereafter, Judge Hall filed a motion to strike certain portions of Petitioner’s (United States’) motion for permission to file. Respondents filed a motion to dismiss the motion for permission to file the petition for the writ of prohibition etc. Respondents also filed their motion to vacate portions of our order. We granted leave to the State of California and fourteen irrigation districts and a municipal utility district to file an amicus curiae brief. Upon our…

(concurring).

With the minor exception hereafter noted I concur in Judge Stephens’ opinion. It is apparent that if the case of Rank v. Krug should ever reach this court on appeal from final judgment, we may then be confronted with a problem similar to that discussed in Larson v. Domestic & Foreign Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 . Our present opinion concerns only the order of April 24, 1953, and that for the reason that we may now move only so far as necessary to protect our appellate jurisdiction against loss of what Judge Stephens calls “the res of Lhc case.” This limitation of the scope of our opinion should not be construed to be an expression of our views as to those questions which we may properly consider if there should be such an appeal.

My own interpretation of the so-called “consent to the order” of April 24 gives it a rather limited effect. When the colloquy quoted in footnote 3 of the opinion took place, Mr. McPherson, the Special Assistant to the Attorney General was representing only Poke, Blote, Roduer and Durant. The United. States was not a party, and neither the Secretary of the Interior nor the Commissioner of Reclamation had been served.…