Opinion
No. 9879.
March 19, 1934.
Appeal from the District Court of the United States for the District of Minnesota; Gunnar H. Nordbye, Judge.
Action by Harold E. Atkinson against the United States. From a judgment of dismissal ( 4 F. Supp. 398), plaintiff appeals. Motion to dismiss the appeal.
Motion denied.
John J. Stoller and William A. Marin, both of Minneapolis, Minn., for appellant.
George F. Sullivan, U.S. Atty., of St. Paul, Minn.
Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.
This is an appeal by a taxpayer from an adverse judgment in an action to recover a balance of overpayment of income taxes. Appellee files a motion to dismiss upon various grounds. One of these is that the deposit with the clerk of this court has not been made in full. It appears that this deficiency has been made good. The other grounds stated in the motion are that no question of law or fact has been properly preserved for review on this appeal. Although this court has sometimes considered similar grounds, they are strictly matters for presentation in connection with the appeal, and would, usually, result in affirmance of the action of the trial court instead of dismissal of the appeal. As the matters raised by the motion may vitally affect the merits of the appeal, we deny the motion to dismiss without intending to express any views upon the grounds urged in the motion.