WH Lailer & Co. v. CE Jackson Co.

Citation75 F. Supp. 827
Decision Date06 February 1948
Docket NumberCivil Action No. 6853.
PartiesW. H. LAILER & CO., Inc., v. C. E. JACKSON CO.
CourtU.S. District Court — District of Massachusetts

Leon Aborn, Mark Aborn, and Aborn & Aborn, all of Boston, Mass., for plaintiff.

Richard H. Wiswall, Hill, Barlow, Goodale & Wiswall, and Willis A. Neal, all of Boston, Mass., for defendant.

WYZANSKI, District Judge.

This is an appeal from a reparation order of the Secretary of Agriculture under Act of June 10, 1930, c. 436, § 7(c), as amended. U.S.C.A. Title 7, § 499g(c). Two motions are before me, one to dismiss the appeal as not timely taken, the other to enter judgment for appellee on the pleadings.

The basis of the first motion is the statutory provision that "either party adversely affected by the entry of a reparation order by the Secretary may, within thirty days from and after the date of such order, appeal therefrom to the district court * * *. Such appeal shall be perfected by the filing of a notice thereof together with a petition in duplicate which shall recite prior proceedings before the Secretary, and shall state the grounds upon which petitioner relies to defeat the right of the adverse party to recover the damages claimed, with the clerk of said court with proof of service thereof upon the adverse party, together with a bond * * *."

In the instant case the Secretary entered the reparation order May 14, 1947. June 9, 1947, W. H. Lailer & Co., Inc., filed with the clerk of this court (1) a notice of appeal and (2) duplicate copies of a petition reciting prior proceedings and stating grounds upon which petitioner relied to defeat C. E. Jackson's Company's claim. June 10, 1947 W. H. Lailer & Co., Inc., filed a bond. August 5, 1947, counsel for W. H. Lailer & Co., Inc., filed with the clerk affidavit of mailing to the counsel for C. E. Jackson & Co. the notice of appeal and the petition.

Thus within 30 days after the Secretary's reparation order W. H. Lailer & Co., Inc., performed all the acts specified by § 7 (c) except to file a proof of service. And the issue is whether since the proof of service was not filed within 30 days this court lacks jurisdiction to hear the controversy. I am of the view that the failure to file within 30 days the proof of service does not defeat the jurisdiction of this court. The statute is somewhat inartistically drafted. The first sentence, which sets the 30 day period for an appeal, does not define what steps constitute an appeal; and the second sentence states that the appeal is perfected by taking the 4 steps of notice, petition, bond and proof of service. Read literally therefore the statute requires each step to be taken before jurisdiction attaches. Yet such insistence on the letter of the statute serves no useful purpose. Once the notice petition and bond had been filed, as they were in this case, it became clear on the record of this court that W. H. Lailer & Co. Inc., was serious about its efforts to secure review. Compare Alaska Packers Ass'n v. Pillsbury, 301 U.S. 174, 177, 57 S.Ct. 682, 81 L.Ed. 988. Perhaps even less than those three steps would suffice to allow the jurisdiction of this court to attach. But, when, as here, everything except affidavit of service had been filed it would be unjustifiably technical to conclude that this court was forever without jurisdiction to hear the case, even though no one had been prejudiced by the delay in serving C. E. Jackson Company. What was said in Reconstruction Finance Corp. v. Prudence...

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8 cases
  • Dzur v. Northern Indiana Public Service Co.
    • United States
    • Indiana Supreme Court
    • February 16, 1972
    ...rule was the basis for our Trial Rule 62(D)(2) have held the failure to provide bond is not jurisdictional. W. H. Lailer & Co. v. C. E. Jackson Co. (D.Mass.1948), 75 F.Supp. 827. Failure to comply with the rule may be grounds for dismissal, but the matter is within the discretion of the Cou......
  • Alphas Co. Inc. v. Empacadora GAB, Inc.
    • United States
    • U.S. District Court — District of Massachusetts
    • July 10, 2012
    ...the bond [was] more than adequate in a practical sense"), amended on reh'g, 169 F.2d 60 (1st Cir. 1948); W.H. Lailer & Co. v. C.E. Jackson Co., 75 F. Supp. 827, 828 (D. Mass. 1948) (finding that "the effect of the procedural irregularity was not substantial," and refusing to dismiss appeal,......
  • Hoy v. Newburg Homes, Inc.
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 20, 1959
    ...some step ancillary to the appeal will not defeat jurisdiction of the appellate court to hear the case. W. H. Lalier & Co. v. C. E. Jackson Co., D.C.Mass.1948, 75 F.Supp. 827; Philadelphia Brief Case Company v. Specialty Leather Products Co., Inc., D.C.N.J.1958, 160 F.Supp. Where the thing ......
  • Chidsey v. Geurin, Civ. A. No. 54.
    • United States
    • U.S. District Court — Western District of Michigan
    • June 30, 1970
    ...but is a mere supersedeas. Plaintiff cites Login Corp. v. Botner, 74 F.Supp. 133 (D.C.Cal.1947), and W. H. Lailer & Co. v. C. E. Jackson Co., 75 F.Supp. 827 (D.C.Mass.1948), to support his The favorable language in the above cases was made obsolete by the 1962 amendment to section 499g(c). ......
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