J.D. Randall Co. v. Foglesong Mach. Co.

• Decision Date: 03 December 1912
• Docket Number: 2,410.
• Citation: 200 F. 741
• Parties: J. D. RANDALL CO. v. FOGLESONG MACH. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

200 F. 741

J. D. RANDALL CO. v. FOGLESONG MACH. CO.

No. 2,410.

United States Court of Appeals, Sixth Circuit.

December 3, 1912

Murray & McCallister, of Cincinnati, Ohio, for appellant.

Staley & Bowman, of Springfield, Ohio, for appellee.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

The appeal in this cause is taken, under section 129 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1134 (U.S Comp. St. Supp. 1911, p. 194)), from an interlocutory decree granting an injunction in a patent cause. Motion is made to dismiss, on the ground that the appeal was not taken within 30 days. The decree appealed from was made and entered August 15, 1912. Appeal papers in due form were mailed by appellant's counsel to District Judge Sater, with a letter dated September 13th, and were received by him as early as September 14th. District Judge Hollister, who made the decree, was absent (we understand from the district) on September 13th and until September 27th. On September 14th Judge Sater returned the appeal papers by mail to appellant's counsel, with the statement that he was averse to making any order in a case with which he had had no connection and of which he had no knowledge, and with the request that the papers be presented to Judge Hollister upon his return, which was apparently then expected on September 23d. Judge Sater apparently overlooked the fact that September 14th was the last day for taking appeal. On October 4th Judge Hollister allowed the appeal nunc pro tunc.

We think the motion to dismiss should be denied. September 14th was within the 30 days. Smith v. Gale, 137 U.S. 577 11 Sup.Ct. 185, 34 L.Ed. 792; Loveland on Appellate Jurisdiction, Sec. 70. The appeal was matter of right, and not of discretion (The Douro, 3 Wall. (70 U.S.) 564, 566, 18 L.Ed. 168; United States v. Adams, 6 Wall. (73 U.S.) 101, 107, 18 L.Ed. 792; McCourt v. Singers-Bigger Co. (C.C.A. 8) 150 F. 102, 104, 80 C.C.A. 56; and when properly claimed in due season the right could not be defeated by the failure of the court to act upon the application within the time required for taking appeal (United States v. Adams, supra; Latham v. United States, 131 U.S. App. xcvii, 19 L.Ed. 452). As said by Justice Miller, in the Adams Case:

'The appeal is to be taken within 90 days, not granted, or allowed, or permitted, but taken-- a word which implies action on the part of the appellant alone.'

In the Adams and Latham Cases it was held that an order allowing appeal relates back to the date of the prayer for allowance and is considered as made on that date. It is true that both the Adams and Latham Cases were appeals from the Court of Claims, whose rules declared that the limitation of time for granting appeals shall cease to run from the time application for its allowance is made, and that the filing of the application shall be deemed to be its date. But the reasoning in the Adams Case supports the conclusion we have reached.

While the appeal cannot be said to be 'taken' until it is 'in some way presented to the court which made the decree appealed from, thereby putting an end to its jurisdiction over the cause, and making it its duty to send it to the appellate court' (Credit Co. v. Arkansas Central Ry Co., 128 U.S. 258, 261, 9 Sup.Ct. 107, 108 (32 L.Ed. 448); Farrar v. Churchill, 135 U.S. 609, 612, 10 Sup.Ct. 771, 34 L.Ed....