Opinion
No. 12593.
June 6, 1956. Writ of Certiorari Denied October 8, 1956. See 77 S.Ct. 83.
No appearance for appellant.
Edmund E. Shepherd, and Russell A. Searl, Lansing, Mich., for appellee.
Before MARTIN, MILLER and STEWART, Circuit Judges.
This appeal, wherein appellant J.B. Hicks filed a brief and the appellees appeared by an Assistant Attorney General of the State of Michigan both in oral argument and by printed brief, has been duly considered; and the conclusion has been reached that United States District Judge Levin, sua sponte, properly dismissed the complaint for the reasons stated by him: namely, that the records of the United States District Court for the Eastern District of Michigan show that a complaint covering the same subject matter and parties had been dismissed by one of the judges of that court for lack of jurisdiction under Rule 12(h)(2) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; and that such dismissal on jurisdictional grounds brings the action within the principle of res judicata. W.E. Hedger Transp. Corp. v. Ira S. Bushey Sons, Inc., 2 Cir., 186 F.2d 236; see also Ripperger v. A.C. Allyn Co., 2 Cir., 113 F.2d 332.
On the merits of the case, the original order entered by United States District Judge Lederle was correct upon the authority of Kenney v. Fox (Kenney v. Hatfield), 6 Cir., 232 F.2d 288.
The judgment of the district court, dismissing the complaint, is therefore affirmed.