MITCHELL v. MASON et al.

MITCHELL v. MASON et al. (Circuit Court of Appeals, Fifth Circuit. February 13, 1925.) No. 4474. Appeal and error i®=>82(3) — Order setting aside a pro confesso held not final decree, sufficient to support appeal. Order setting aside a pro confesso, entered for want of reply to counterclaim in answer, held not final decree, from which appeal lies, under Judicial Code, § 128 (Comp. St. § 1120). Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Suit by the United States against Thomas J. Mason and George H. Mason, as administrators of the estate of Harry Mason, deceased, David F. Mitchell, and others, for adjudication of rights of defendants to property, and for a decree of sale thereof for purpose of liquidating tax against estate of Harry Mason, wherein David F. Mitchell filed answer, claiming the property involved as against all defendants. From an order setting aside a pro confesso on the answer, David F. Mitchell appeals. Appeal dismissed. See, also; 1 F.(2d) 318. David F. Mitchell, of Jacksonville, Fla., in pro. per. J. T. G. Crawford, of Jacksonville, Fla., for appellees. Before WALKER and FOSTER, Circuit Judges. [MAJORITY — FOSTER, Circuit Judge.] FOSTER, Circuit Judge. In this ease it appears that the United States filed a bill of complaint against Thomas J. Mason and George H. Mason, as administrators of the estate of Harry Mason, and against numerous other persons, including appellant, David F. Mitchell. The bill alleges that each of the defendants has or claims to have a lien or some interest in certain real estate in Duval county, Fla., standing in the name of Harry Mason, and prays for adjudication of the rights of all parties as to tho property, and for a decree of sale of the said real estate for the purpose of liquidating the tax assessed against tho estate of Harry Mason. Appellant filed an answer to the bill, setting out his claim to the said property in extenso, and claiming the property as against all of the other defendants. On the theory that the answer set up a counterclaim, requiring a reply from the other parties to the suit, an order allowing a pro confesso on the answer was entered. Subsequently, on motion of the executors of tho estate of Mason, above named, the order was set aside. It is'from the setting aside of the pro confesso that this appeal is prosecuted. A motion to dismiss the appeal has been made on the ground that the decree is not final, and hence no appeal will lío. The order setting aside the pro confesso left the proceedings still pending before the District Court and undisposed of as to the merits. It is not a final decree in any Sense. Except as provided by special laws, not applicable to this ease, this court has jurisdiction on appeal of final decisions only. Judicial Code, § 128 (Comp. St. § 1120). Appeal dismissed.