Opinion
No. 17217.
September 14, 1961.
Alfred Bundy, Los Angeles, Cal., and Kenneth P. Barnum, in pro. per.
Roy Gargano, County Counsel, County of Kern, Rex R. Mull, Chief Deputy County Counsel, County of Kern, Bakersfield, Cal., for appellee.
Before HAMLEY and JERTBERG, Circuit Judges, and MURRAY, District Judge.
In this damage suit brought under the Civil Rights Act, 42 U.S.C.A. §§ 1981-1988, appellants seek to appeal from an order dismissing the complaint on the ground that it fails to state a claim upon which relief can be granted.
Except under special circumstances not present here, an order which dismisses a complaint without dismissing the action is not an appealable order. Javor v. Brown, 9 Cir., 295 F.2d 60.
The court therefore on its own motion dismisses the appeal and remands the case to the district court. If upon this remand appellants elect not to amend their complaint, the trial court should enter a judgment dismissing the action. Appellants may appeal therefrom and in that event may proceed on the record and briefs now before this court together with a supplemental transcript to show subsequent district court proceedings.