WH Lailer & Co. v. CE Jackson Co.
Citation | 75 F. Supp. 827 |
Decision Date | 06 February 1948 |
Docket Number | Civil Action No. 6853. |
Parties | W. H. LAILER & CO., Inc., v. C. E. JACKSON CO. |
Court | U.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.
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
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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...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......
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