Opinion
No. 12951.
September 19, 1956.
Fred B. Collier, Royal Oak, Mich., Philip Pratt and Clarence L. Smith, Pontiac, Mich., for appellant.
No appearance for appellee.
A motion has been filed to dismiss this appeal from an order of a district judge refusing to disqualify himself in a proceeding in response to a motion and affidavit of bias or prejudice filed under the provisions of 28 U.S.C.A. § 144.
The order of which the appellants complain is not appealable. It is not a final decision, 28 U.S.C.A. § 1291; it is not such an interlocutory order or decree as is described in 28 U.S.C.A. § 1292. In re Chicago Rapid Transit Co., 7 Cir., 1953, 200 F.2d 341, 343, 33 A.L.R.2d 1360; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 671. The denial of a motion and affidavit of bias or prejudice filed under 28 U.S.C.A. § 144 can be reviewed upon appeal of an interlocutory order which is appealable or upon appeal from the final decision in the proceeding in which the motion and affidavit were filed. See Korer v. Hoffman, 7 Cir., 1954, 212 F.2d 211, 213, 45 A.L.R.2d 930.
The motion to dismiss this appeal was filed by the Federal Housing Administration. Its standing to make the motion is questionable, since it has not been named as an appellee. A court of appeals has the duty, however, on its own motion to dismiss an appeal which it does not have jurisdiction to hear.
The present appeal in this cause is therefore dismissed.