MacNEIL BROS. COMPANY v. State Realty Co. of Boston, 5440.
Decision Date | 14 January 1959 |
Docket Number | No. 5440.,5440. |
Citation | 262 F.2d 364 |
Parties | MacNEIL BROS. COMPANY et al., Appellants, v. STATE REALTY COMPANY OF BOSTON, Inc., Defendant, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
A. M. MacNeil, Somerville, Mass., for appellants.
Phillip Cowin, Boston, Mass., and Fox, Orlov & Cowin, Boston, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
This appeal is a backwash of our decision in Matter of MacNeil Bros. Company, 1 Cir., 1958, 259 F.2d 386, 388, in which case we declined to review by a writ of mandamus an order of the United States District Court for the District of Massachusetts entered April 7, 1958, reading as follows: "Having examined the Petition for Removal, so-called, and all papers accompanying same filed therewith, the only matter that is clear to the court is that the petition must be, and it hereby is, dismissed, for, among other reasons, lack of jurisdiction."
After our decision in the foregoing case was handed down, there was some correspondence back and forth between Angus M. MacNeil, Esq., and the district court. Finally, on October 7, 1958, Judge Aldrich made an order, which was duly entered on that date, reading as follows:
Thereafter, on October 29, 1958, the following notice of appeal was filed:
As appears from our opinion in the mandamus action, the only proceeding which was ever pending before the district court was the so-called Petition for Removal, filed by Adrian Corporation, Belknap Corporation, Concord Corporation, Delmont Corporation, and Boston Development Corporation. In the caption to the Notice of Appeal, these five corporations are described as "Third Party Defendants"; but we have before us no record indicating that they ever were admitted as parties. Indeed, the inference from the order of October 7 is that they never were made parties to the suit for redemption of certain real estate which was instituted in the state court by MacNeil Bros. Company against the State Realty Company of Boston, Inc.
We now have before us a motion to dismiss, filed by State Realty Company of Boston, Inc., appellee herein. A memorandum in opposition has been filed by Angus M. MacNeil, Esq., on behalf of appellants. We repeat what we had occasion to say in MacNeil Bros. Company v. Forte, 1 Cir., 1958, 253 F.2d 500:
In the memorandum of opposition to the motion to dismiss, MacNeil takes exception to the statement just quoted. But the characterization was derived from our own records, which cannot be explained away.
If we ever got to the merits of the present appeal, we could only reverse the order of October 7, 1958, refusing to vacate the earlier order of April 7 upon a determination that the rendition of the order of October 7 constituted an abuse of discretion — which would be hard for us to conclude in view of the circumstances...
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In re MacNeil, 5491 Original.
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