United States v. Price-McNemar Construction Co.

This is a suit to recover $6,508.83 for labor and materials furnished in the construction of a Government facility, brought pursuant to the Miller Act, 40 U.S.C. § 270 -e. Upon motion of defendants the district court dismissed the second amended complaint on the ground that the action was not commenced within the time specified in 40,U.S.C. § 270b(b). Plaintiff appeals.

Before reaching the merits we are met with appellee’s contention, in effect, that this court is without jurisdiction to entertain the appeal because, by reason of the late commencement of the action, no federal court can gain jurisdiction of the subject matter in controversy.

The jurisdiction of this court depends only upon whether the jurisdictional requirements of statutes and rules pertaining to the taking of appeals have been met. Appellees do not contend that there is here any deficiency in this regard. If, as here, a district court denies relief on the ground that it lacks jurisdiction, a court of appeals has jurisdiction to entertain the appeal for the purpose of determining whether the district court correctly decided the jurisdictional question. Russell v. United States, 9 Cir., 306 F.2d 402, 405 . We…