Harper Bros. v. Klaw
| Decision Date | 26 January 1921 |
| Parties | HARPER BROS. et al. v. KLAW et al. |
| Court | U.S. Court of Appeals — Second Circuit |
John Larkin, of New York City, for complainants.
David Gerber, of New York City, for defendants.
See also, 232 F. 609.
The following is the order of January 5, 1921, referred to in the opinion:
A motion having been made herein by counsel for the appellant for leave to move in the District Court to file a bill of review, upon consideration thereof it is ordered that said motion be and hereby is denied without prejudice to an application for relief in the District Court, within 30 days from the date hereof; the appeal herein to be held in abeyance, and the time for filing the appeal record and briefs to be extended until the further order of the court.
Before ROGERS, HOUGH, and MANTON, Circuit Judges.
The motion resulting in the order sought to be resettled had two parts: (1) That plaintiffs have leave to file in the District Court a bill of review; or (2) that plaintiffs have leave to apply to the District Court for leave there to file such bill of review.
The arguments made on this motion to resettle lead us to state the reasons for the order of January 5th, and we do this to aid the District Court in any further proceeding that may be had herein.
The first branch of the motion was denied, because it is not the concern of this court whether a bill of review be filed or not; it cannot be filed with us, and, if it be filed in the lower court, upon the due request of that court to us for the return of the record, our powers will be confined to those arising upon an appeal duly taken.
We denied the second branch of the motion, because no permission or leave from us is necessary to enable these plaintiffs or any other party to make application or petition to the District Court; they have that right without our leave.
We added to the order a statement that it should be without prejudice to an application for relief in the District Court for the following reasons: So far as we are informed plaintiffs desire to file a bill of review; their motion papers disclose no other intent. To accomplish this in the lower court it is necessary for that court to request this court to send back the record on the appeal now pending herein, to the end that the case may again be before the District Court.
We express no opinion as to whether a bill of review is the proper or...
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...jurisdiction to hear libelant's argument since the record on appeal has not been filed nor the appeal docketed. See also Harper Bros. v. Klaw, 272 F. 894 (2d Cir. 1921). Accordingly, libelant's motion for reargument is Although Rule 9(m) of the General Rules of this Court provides that wher......
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Ryan v. United States Lines Company
...178, 194 F.2d 349 (1952) and supported by the approach taken by this court in the pre-Federal Rules case of Harper Bros. v. Klaw, 272 F. 894, 895 (2 Cir.1921). In Smith v. Pollin, the Court of Appeals for the District of Columbia Circuit prescribed the procedure it found implied in the anal......
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...has been decided unofficially can be made official. Sometimes this request for remand is sent up by the trial court itself. Harper Bros. v. Klaw, 2 Cir., 272 F. 894, and Switzer v. Marzall, D.C., 96 F.Supp. 332. Sometimes a motion for remand is made in the appellate court by the moving part......
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...on appeal. Therefore, on this basis, this motion must be denied, Miller v. United States, 7 Cir., 1940, 114 F.2d 267; Harper Bros. v. Klaw, 2 Cir., 1921, 272 F. 894, as not within the power of the Court at this However, to dispose of this action in all aspects, the Court will now concern it......