Lewis v. Hitchman Coal & Coke Co.

• Decision Date: 11 March 1910
• Docket Number: 949.
• Citation: 176 F. 549
• Parties: LEWIS et al. v. HITCHMAN COAL & COKE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

176 F. 549

LEWIS et al. v. HITCHMAN COAL & COKE CO.

No. 949.

United States Court of Appeals, Fourth Circuit.

March 11, 1910

Charles E. Hogg, for appellants.

George R. E. Gilchrist, for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

On the 24th of October, 1907, the Hitchman Coal & Coke Company, the appellee here, filed its bill of complaint in the Circuit Court of the United States for the Northern District of West Virginia, at Philippi, seeking an injunction against the defendants upon the grounds alleged in the bill, and to the extent prayed for.

A temporary restraining order was issued on plaintiff's motion, and set down for hearing on the 14th day of January 1908, and on that day the said hearing, on motion of defendants, was postponed until March 18, 1908, and the restraining order theretofore issued continued until the last-named date. On the 18th of March, 1908, the hearing was further postponed at the instance of defendants until the 26th day of May, 1908, and the restraining order continued until that day. On the 26th day of May, 1908, a hearing was had, and the injunction was granted as prayed for in the bill, the said injunction being in the same language as the temporary restraining order theretofore granted. On the day to wit, May 26, 1908, that the hearing was had, and the injunction granted, certain of the defendants who had been served moved to dissolve the injunction, and this motion was continued until the 3d day of November, 1908. So far as appears from the record, the defendants took no further action on the motion to dissolve, but on the 15th of December, 1908, they filed in writing a motion to dissolve in part and to modify in certain respects the injunction of May 26, 1908. The latter motion was argued orally, and submitted on briefs of counsel for the parties April 7, 1909, and on September 21, 1909, the court entered an order denying the motion to modify, and continuing in force the injunction as granted on the 26th of May, 1908. From this order the defendants appealed to this court.

The interlocutory decree granting the injunction was entered, as before stated, on May 26, 1908, and 30 days elapsed thereafter without appeal. The question is presented to us upon a motion to dismiss as to whether the order of September 21, 1909, is appealable. This question arises under section 7, Act March 3, 1891, c. 517, 26 Stat. 828, to establish Circuit Courts of Appeals as amended by Act June 6, 1900, c 803, 31 Stat. 660 (U.S. Comp. St. 1901, p. 550), and Act April 14, 1906, c. 1627, 34 Stat. 116 (U.S. Comp. St. Supp. 1909, p. 220). The said section as amended reads as follows:

'Sec 7. That where, upon a hearing in equity in a District or in a Circuit Court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in any cause an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the Circuit Court of Appeals: Provided, that the appeal must be taken within thirty days from entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court, or by the appellate court, or a judge thereof, during the pendency of such appeal: Provided further, that the court below may, in its discretion, require as a condition of the appeal an additional bond.' The order entered by the court upon the motion of the defendants to dissolve in part and modify the injunction of May 26, 1908, is in the following language:

'And the court, now being advised of its decision, in accordance with its written opinion filed in this cause at Philippi, September 21, 1909, delivered for convenience of court and counsel in open court at Wheeling, September 21, 1909, doth overrule the said motion of the served defendants for a partial dissolution and correspondent modification of said

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