Donald H. Jacobs, Doing Business As the Jacobs Instrument Company, Appellant, v. United States of America, Appellee, 252 F.2d 296 (4th Cir. 1958)

This is an appeal from an order dismissing without prejudice a motion in the District Court to reopen the case of Jacobs v. United States, 4 Cir., 239 F.2d 459, certiorari denied 353 U.S. 904, 77 S. Ct. 666, 1 L. Ed. 2d 666, in which judgment had been affirmed by this court. The purpose of the motion was to have the liability of the United States for certain use and sales taxes, asserted against Jacobs by the State of Maryland, adjudicated in the case. The District Judge dismissed the motion without prejudice, but stated in the order of dismissal that he would consider a further motion upon the final termination of an action which Jacobs had instituted in a court of the State of Maryland with regard to the use and sales taxes.

It is clear that the order appealed from should be affirmed, as the District Judge was acting well within the limits of a sound discretion in dismissing without prejudice the motion to reopen the case, but with leave to renew it after the termination of the action in the state court. As final judgment herein has been affirmed on appeal, there is question as to whether, if the motion should be renewed in accordance with the permission granted, it could be passed upon by the District Court without leave from this Court. See Colgate-Palmolive Co. v. Carter Products, 4 Cir., 243 F.2d 163, 164. To avoid unnecessary delay, therefore, we will grant leave, in the order affirming the dismissal, for the District Court, after the termination of the action instituted by Jacobs in the state court, to consider and pass upon any motion which he may present to reopen this case for the purpose of having adjudicated the liability of the United States for the use and sales taxes in controversy.

Affirmed.