Bates v. Batte Review of Request to Appeal

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

No. 13,215

GLADYS NOEL BATES and RICHARD JESS BROWN, 
Individually, etc.,

Appellants,
versus

JOHN C. BATTE, ETC., ET AL.,
Appellees.

Appeal from the United States District Court for the 
Southern District of Mississippi.

(February 15, 1951)

Before HUTCHESON, Chief Judge, and McCORD and 
RUSSELL, Circuit Judges.

PER CURIAM: This appeal presents two questions 
for our decision. One of them arises upon appellees' 
motion to dismiss the appeal for want of jurisdiction in 
this court because it was not taken in accordance with 
law. The other goes to the merits of the appeal.

They come up in this way. Brought as a class suit 
by a negro school teacher with another intervening, the 
suit was to restrain the defendants, the Superintendent



2 G. N. Bates, et al., etc. v. J. C. Batte, etc., et al.
and members of the Board of Trustees, from fixing and 
maintaining, on the basis of color or race, lower teacher 
salary schedules for negro, than for white, teachers.

The defendants moved to dismiss, because the state 
was an indispensable party and because plaintiffs had 
not first exhausted their administrative remedies pro­
vided by Mississippi administrative statutes governing 
education and controversies arising in and about schools. 
This motion denied, and, defendants having answered, 
their motion for summary judgment was denied, and the 
cause proceeded to trial on the merits.

After the case had been tried, but before it was 
decided below, this court, in Cook v. Davis, 178 F (2) 
595, a negro school teacher salary case appealed from 
the Atlanta Division of the Northern District of Georgia, 
held, in a thoroughly considered and carefully reasoned 
opinion, that until plaintiffs had exhausted their admin­
istrative remedies provided by Georgia laws governing 
education and controversies arising under school laws, 
they could not maintain their suit.

The district judge, of the opinion: that the adminis­
trative remedies relating to controversies under school 
laws set up by the State of Mississippi are substantially 
the same as those set up by the State of Georgia; that 
the decision in the Cook case was therefore controlling; 
and that the present suit could not be maintained until 
the available remedies provided by state law had not 
been first exhausted; said so in an opinion filed February 
22, 1950. A judgment dismissing the complaint without 
prejudice was entered March 22, 1950.

On March 20, 1950, before the judgment of dis-



3G. N. Bates, et al., etc. v. J. C. Batte, etc., et al.
missal had been filed, plaintiffs gave notice of appeal 
“from the judgment of the court entered on the 22nd day 
of February, 1950, in favor of defendants above named 
against plaintiffs”.

Here, appellees, calling our attention to the fact that 
appellants gave notice of appeal not from the judgment 
but from the opinion, and that their notice of appeal was 
given two days before the judgment was filed, urge upon 
us that the appeal must be dismissed: (1) because not 
taken from a final judgment but only from an opinion; 
and (2) because, if it could be said that it was taken 
from the judgment, it was premature because filed be­
fore the judgment was entered.

Appellants, invoking the decisions of this court,1 
urge upon us that appellees’ objections go not to defects 
in the substance of appeal procedure but in the form 
of it, and, by a uniform course of decision, this court 
has denied motion to dismiss appeals based upon such 
objections.

While the matter is certainly not wholly free from 
doubt, we are of the opinion: that the defects in the 
appeal are not sufficiently substantial to deprive us of 
jurisdiction; and that, in accordance with the generally 
established practice of this court, the motion to dismiss 
should be, and it is, denied.

On the merits, appellants and appellees vie with 
each other in their efforts to point out, the one, the dis­
similarities, the other, the similarities in the Georgia and 
Mississippi statutes governing education and school 
matters in the respective states.
1 Milton v. U. S., 120 F(2) 794; Wilson v. Southern Ry. Co., 147 
F(2) 165; Morrow v. Wood, 126 F(2) 1021, 1022; Crump v. Hill, 
104 F(2) 36; Fahs v. Merrill, 142 F(2) 651.



4 G. N. Bates, et at., etc. v. J. C. Batte, etc., et al.
Without undertaking, as the parties have done in 

their briefs, to set these statutes out, or to draw atten­
tion, as the district judge has done, to the features of 
similarity controlling his decision, it is sufficient for 
us to say that we regard the case of Cook v. Davis as 
thoroughly considered and well decided and that the 
statutes of the two states are sufficiently alike to make 
the decision in Cook’s case dispositive of the appeal.

The judgment of dismissal for failure to exhaust 
administrative remedies was right. It is

AFFIRMED.

A True copy: 
Teste:

Clerk of the United States Court of 
Appeals for the Fifth Circuit.