Opinion
No. 12169.
June 21, 1949.
Appeal from the United States District Court for the Southern District of California, Central Division; Ben Harrison, Judge.
Action by Clara Brown, a minor, by Jesse J. Brown, her guardian ad litem, against the Atchison, Topeka Santa Fe Railway Company. The action was removed from the state court on ground of diversity of citizenship. From an order of remand, the defendant appeals.
Appeal dismissed.
Robert W. Walker, J.H. Cummins and J.B. Kramer, Los Angeles, Cal., for appellant.
Claude A. Watson, Edward P. Hart and Samuel P. Young, Los Angeles, Cal., for appellee.
Before HEALY, BONE and ORR, Circuit Judges.
Appellee filed an action in the Superior Court of the State of California, in and for the County of Los Angeles. A petition for removal on the ground of diversity of citizenship was filed in the state court and that court ordered removal.
The United States District Court, to which the action was ordered removed by the state court, remanded the case to the state court. From the order of remand an appeal was taken.
Appellee moved to dismiss the appeal on the ground, among others, that an order of remand is not an appealable order.
Appellant resisted the motion for dismissal on the ground that Congress, in its revision of Title 28 of the United States Code, effective September 1, 1948, repealed the provision contained in § 71 of Title 28 U.S.C.A. which prohibited an appeal from an order of remand.
Congress, in its enactment of Public Law 72, H.R. 3762, restored the provision prohibiting an appeal from an order of remand, see § 84(a), sub.(d) of said Act, 28 U.S.C.A. § 1447(d).
At the time of oral argument of the motion to dismiss, the effect of the elimination of the prohibition against appeal from an order of remand was stressed. The restoration of the prohibition, however, renders that discussion academic. We think the amendment has direct application to the pending appeal and requires its dismissal.
So ordered.