Pressed Steel Car Co. v. Chicago & A.R. Co.

• Decision Date: 31 October 1911
• Docket Number: 1,844.
• Citation: 192 F. 517
• Parties: PRESSED STEEL CAR CO. v. CHICAGO & A.R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

192 F. 517

PRESSED STEEL CAR CO. v. CHICAGO & A.R. CO.

No. 1,844.

United States Court of Appeals, Seventh Circuit.

October 31, 1911

Isaac M. Jordan, Lewis H. Freedman, P. C. Dyrenforth, and Russell Wiles (W. W. Gurley, Adrian H. Joline, and Adrian H. Larkin of counsel), for appellant.

Charles C. Linthicum and Winston, Payne, Strawn & Shaw (Silas H Strawn, of counsel), for appellee.

Before BAKER and SEAMAN, Circuit Judges, and CARPENTER, District judge.

SEAMAN Circuit Judge (after stating the facts as above).

This appeal is unauthorized within the general provision for the exercise of 'appellate jurisdiction to review by appeal or by writ of error final decisions' of the trial courts and the alleged right of review rests alone on section 7 of the Circuit Court of Appeals act, as amended in 1906 (34 Stat. 116), providing for an appeal 'when upon a hearing in equity' in the trial court 'an injunction shall be granted or continued. ' As remarked in the opinion of Judge Grosscup, speaking for this court, in Root v. Mills, 168 F. 688, 689, 94 C.C.A. 174, 175, section 7, 'in the interest of a more liberal right of appeal, is a distinct departure from the policy of appeals under the older chancery rules,' and its limitation to such interlocutory orders arising upon 'a hearing in equity' must be strictly observed. The well-recognized meaning of a hearing, upon proceedings for these interlocutory orders, as there defined, furnishes the test of appealability under such provision.

The order in question, while it enjoins the appellant from further proceedings in a suit at law against the appellee, until the further order of the court, does not purport, in terms, to be granted upon hearing of the parties, nor upon motion of the appellee therefor; nor is the presence of its counsel mentioned therein. It recites a hearing upon 'demurrer of the defendant to complainant's bill,' which had theretofore been overruled, with leave to answer the bill; that the defendant (appellant) by its solicitors suggests to the court that 'heretofore, by oral agreement of counsel in open court, the defendant has refrained from prosecuting its suit at law' mentioned in the bill, 'but that it does not wish to be futher bound by said agreement'; and that 'thereupon, in consideration of the premises and upon reading the bill of complaint,' the defendant is enjoined, as above stated. This order was entered June 6, 1911, after various proceedings under the bill, filed November 10, 1910, included hearings upon pleas to the jurisdiction, exceptions to the bill, and demurrer.

The relief sought by the bill is cancellation of a contract outstanding between the parties and to enjoin proceedings pending at law thereupon. When the...