Charles Resnik v. La Paz Guest Ranch

The necessary jurisdiction below is in issue in this case. Appellant asserts federal diversity jurisdiction under 28 U.S. C. § 1332. Several appeals are taken (a) from an order of the district court vacating a partial summary judgment and (b) from a further order of the same court dismissing appellant’s action. Jurisdiction on appeal rests on 28 U.S.C. § 1291 .

Appellant in 1958 filed in the United States District Court for the Southern District of California an action on a promissory note, in count one, and for money had and received, an open book account and an account stated in counts two, three and four. The complaint alleged, inter alia, that appellee had, on or about September 1, 1954, executed and delivered to appellant a promissory note for $30,463.85. A partial summary judgment in favor of appellant on count one was entered on August 29, 1958. A writ of execution was then issued and pursuant thereto, the United States Marshal levied upon certain real property belonging to appellee. No sale, however, was held and on July 23, 1959, appellee, apparently proceeding under Fed.R.Civ.P. 60(b) (2) and (3), 28 U.S.C.A. moved to set aside the summary judgment. Appellee claimed…