IN RE INVESTIGATION BY ATTORNEY GENERAL OF UNITED STATES, RE ALLEGED VIOLATIONS OF FEDERAL ANTI-TRUST LAWS

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, CHASE, and PATTERSON, Circuit
Citation104 F.2d 658
Decision Date09 May 1939
PartiesIn re INVESTIGATION BY ATTORNEY GENERAL OF UNITED STATES, RE ALLEGED VIOLATIONS OF FEDERAL ANTI-TRUST LAWS. In re CUDAHY PACKING CO. OF CHICAGO, ILL.

104 F.2d 658 (1939)

In re INVESTIGATION BY ATTORNEY GENERAL OF UNITED STATES, RE ALLEGED VIOLATIONS OF FEDERAL ANTI-TRUST LAWS. In re CUDAHY PACKING CO. OF CHICAGO, ILL.

Circuit Court of Appeals, Second Circuit.

May 9, 1939.


Blake, Stim, Curran & Carlin, of New York City, for appellant.

104 F.2d 659

Charles C. Pearce, Edward Dumbauld, David A. Fields, Hal T. Gibson, William H. Glenn, and Harold L. Schilz, Sp. Assts. to Atty. Gen., for respondent.

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

PATTERSON, Circuit Judge.

The motion is to dismiss an appeal on the ground that the order appealed from is interlocutory and not final. The appellant, Cudahy Packing Company, was served with a subpoena commanding it to produce books and records before a grand jury which was making inquiry into violations of the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. It brought a proceeding to quash the subpoena, asserting that the books and records were so voluminous that the subpoena amounted to unlawful search and seizure under Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L. Ed. 652. The district court after hearing dismissed the petition and ordered the appellant to produce the books and records in response to the subpoena. The appellant took an appeal and obtained a stay pending appeal.

An order directing a person to testify or to produce papers in an action pending in court is regarded as a mere incident in the action, interlocutory and not final so far as appeal is concerned. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Pennsylvania R. Co. v. International Coal Mining Co., 3 Cir., 156 F. 765; Goodyear Tire & Rubber Co. v. Jamaica Truck Tire Co., 7 Cir., 66 F.2d 91; Capitol Co. v. Fox, 2 Cir., 85 F.2d 97, 106 A.L.R. 376. On the other hand, an order of the district court directing a witness to testify and produce papers in a proceeding before the Interstate Commerce Commission is taken as appealable, the order being deemed "the end of a proceeding begun against the witness." Ellis v. Interstate Commerce Commission, 237 U. S. 434, 35 S.Ct. 645, 646, 59 L.Ed. 1036. And when a person whose papers have been taken brings a petition for their return on charge of unreasonable search and seizure, an order of the district court granting or denying the petition, made before an indictment is found or other legal proceeding is commenced, is inevitably final and appealable. In such a case the proceeding for return of the papers is...

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10 practice notes
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...& n. 14, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957), and by this court, United States v. Poller, 43 F.2d 911 (1930); In re Cudahy Packing Co., 104 F.2d 658 (2 Cir. 1939), had stressed the "independence" of Perlman's motion from the criminal proceedings. Some tests with regard to independence were......
  • National Licorice Co v. National Labor Relations Board, No. 272
    • United States
    • United States Supreme Court
    • March 4, 1940
    ...already taken. We think the Court below correctly held that 'the Board was within its powers in treating the whole sequence as one.' (104 F.2d 658.) We find it unnecessary to discuss other points raised by the petitioner. We have considered them and find them without merit. The order below ......
  • Cobbledick v. United States Brawner v. Same Palmuth v. Same 8212 573, Nos. 571
    • United States
    • United States Supreme Court
    • February 26, 1940
    ...because of conflict between the decision below and that of the Circuit Court of Appeals for the Second Circuit, In re Cudahy Packing Co., 104 F.2d 658. The matter in controversy—and the sole question raised in all three cases—vitally concerns the effective administration of the federal crim......
  • RD Goldberg Theatre Corp. v. Tri-States Theatre Corp., Civ. No. 83.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • July 20, 1944
    ...S.Ct. 540, 84 L.Ed. 783; Pennsylvania Railway Co. v. International Coal Mining Co., 3 Cir., 156 F. 765; In re Cudahy Packing Co., 2 Cir., 104 F.2d 658; International Agricultural Corp. v. Pearce, 4 Cir., 113 F.2d 964; National Nut Co. v. Kelling Nut Co., 7 Cir., 134 F.2d In oral argument re......
  • Request a trial to view additional results
10 cases
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...& n. 14, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957), and by this court, United States v. Poller, 43 F.2d 911 (1930); In re Cudahy Packing Co., 104 F.2d 658 (2 Cir. 1939), had stressed the "independence" of Perlman's motion from the criminal proceedings. Some tests with regard to independence were......
  • National Licorice Co v. National Labor Relations Board, No. 272
    • United States
    • United States Supreme Court
    • March 4, 1940
    ...already taken. We think the Court below correctly held that 'the Board was within its powers in treating the whole sequence as one.' (104 F.2d 658.) We find it unnecessary to discuss other points raised by the petitioner. We have considered them and find them without merit. The order below ......
  • Cobbledick v. United States Brawner v. Same Palmuth v. Same 8212 573, Nos. 571
    • United States
    • United States Supreme Court
    • February 26, 1940
    ...because of conflict between the decision below and that of the Circuit Court of Appeals for the Second Circuit, In re Cudahy Packing Co., 104 F.2d 658. The matter in controversy—and the sole question raised in all three cases—vitally concerns the effective administration of the federal crim......
  • RD Goldberg Theatre Corp. v. Tri-States Theatre Corp., Civ. No. 83.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • July 20, 1944
    ...S.Ct. 540, 84 L.Ed. 783; Pennsylvania Railway Co. v. International Coal Mining Co., 3 Cir., 156 F. 765; In re Cudahy Packing Co., 2 Cir., 104 F.2d 658; International Agricultural Corp. v. Pearce, 4 Cir., 113 F.2d 964; National Nut Co. v. Kelling Nut Co., 7 Cir., 134 F.2d In oral argument re......
  • Request a trial to view additional results

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