Parks v. BF Leaman and Sons, Inc.
| Decision Date | 23 June 1960 |
| Docket Number | No. 18215.,18215. |
| Citation | 279 F.2d 529 |
| Parties | Fred PARKS, Trustee for Gulf Transportation Company, Appellant, v. B. F. LEAMAN AND SONS, INC., et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James E. Ross, Houston, Tex., for appellant.
Malcolm W. Monroe, William S. Stone, Eberhard P. Deutsch, Edward S. Bagley, George B. Matthews, New Orleans, La., for appellees.
Before HUTCHESON, BROWN and WISDOM, Circuit Judges.
Appealing from an order1 of the United States District Court for the Eastern District of Louisiana, denying his motions, filed in nine admiralty proceedings which had been brought by several libellants to enforce maritime liens against certain vessels, appellant Parks is here insisting in the consolidated appeals that the order was erroneously entered and must be reversed.
Appellees, moving to dismiss the appeals on the grounds stated in the margin,2 call to our attention that neither appellant Parks nor his predecessor, as trustee in bankruptcy, at any time filed a claim in, or otherwise made himself a party to, the admiralty proceedings, but sought, first by a motion filed June 20, 1959 and submitted on June 24, to show cause why libellants should not comply with the order of the United States District Court for the Southern District of Texas in Bankruptcy, and, second by motion filed July 30th and submitted on August 5, 1959 to transfer the admiralty causes to the United States District Court for the Southern District of Texas, to bring the proceedings of the Bankruptcy Court to the attention, and invoke the aid, of the Admiralty Court.
The record, as pertinent to the motion to dismiss the appeal is set out in the margin.3
In support of the first ground of appellee's motion to dismiss the appeals, that timely filing of the notice is jurisdictional, appellees, citing Eggers v. Southern Steamship Co., 5 Cir., 112 F.2d 347 and Mondakota Gas Co. v. Montana-Dakota Utilities Co., 9 Cir., 194 F.2d 705, insist that failure to file a notice of appeal4 in each case, with payment of the $5.00 fee in each, prevented jurisdiction of this court from attaching, and the appeals should be dismissed.
While we, of course, agree with appellees' proposition that substantial compliance with the requirements for appeal is jurisdictional, and therefore mandatory, we cannot agree with their view that the filing of a single notice and the payment of a single fee was not substantial compliance. As shown in note 1, above, while, considered as admiralty cases, they were not consolidated below, considered for the purpose of dealing with appellant's two motions, they were so treated. Under these circumstances it would be a sticking in the bark to say that, under Sec. 1917, Title 28 U.S.C.A., "Upon the filing of any separate or joint notice of appeal * * * the fee shall be $5.00", the filing of a single notice and the payment of a single fee here was fatal to the appeal.
The matter stands differently, however, with respect to appellees' other grounds for dismissal. It is hornbook law that no res being present, this court is without jurisdiction of the appeals as they affect NBC-536 and NBC-541.5
It is equally clear that, since neither appellant Parks nor the company for which he is trustee, filed a claim to the vessels or in any way made himself or itself a party to the admiralty proceedings as such, and the judge of that court is no longer able to control them, all questions as to the right of the district court to deal with and dispose of the vessels are now moot. That this is so, appellant in effect concedes in his brief when, after stating: "It makes no difference where the vessels may be located, for the District Court for the Southern District of Texas has jurisdiction over them `wherever located' under 11 U.S.C.A. § 511", he goes on to say: In saying this, appellant completely overlooks the fact that in connection with "the order to show cause for order dismissing debtor's petition", the Bankruptcy Court on June 19th entered an order staying and in effect, by restraining the trustee from proceeding under it, nullifying the earlier order, and that on June 29, following and pursuant to the order of June 19th, entered another order to continue any other proceeding in this case pending the court's decision of the same case in New Orleans.
In the light of the fact that, when the reorganization petition was filed, jurisdiction6 of the vessels had already fully vested in the Admiralty Court; of these orders; and of appellant's concession, that the purpose of his appeal is not to set aside the orders in admiralty or alter their effect, but to obtain a ruling whether the admiralty decrees were entered in violation of the orders of the District Court for the Southern District of Texas; it seems quite clear to us that his whole efforts are directed at matters which have already become moot and that the motion to dismiss the appeal as moot should be sustained.
Finally, since the appeal is not from the Bankruptcy Court but from an order in a plenary proceeding in admiralty, Robertson v. Langdon, 7 Cir., 72 F.2d 148, we agree with the appellees that the trustee had no more right than any other litigant to prosecute the appeal without posting an appeal bond or otherwise making satisfactory provision for costs.7 In saying this we realize that the court has the discretion to decline to dismiss. Under all the circumstances, including the long delay in the prosecution of this appeal and the fact that it appears on its face to be without merit, we are of the opinion that the discretion of the court should not be exercised in favor of continuing this long dragged out and unmeritorious proceeding by permitting appellant at this late date to supply his patent omission.
The motion to dismiss is granted and the appeals are dismissed.
2 (1) This court lacks jurisdiction herein, because no notice of appeal was timely filed of record, and as to the in-rem proceedings against Barge NBC-536 and Barge NBC-541, there is no longer any res present within the Eastern District of Louisiana, nor within the territorial jurisdiction of this court.
(2) These appeals are moot, because appellant Parks and Gulf Transportation Company, never having filed claim to any of the vessels, or security for their release, have never been parties to the in-rem proceedings; and following entry of the default decrees in rem, and orders of sale, the vessels were duly sold, at judicial sale, by the Marshal, the sales were confirmed, and ownership of the vessels was transferred to the...
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