Reynolds Trading Corp. v. United States, Customs Appeal No. 74-1.

• Decision Date: 24 October 1973
• Docket Number: Customs Appeal No. 74-1.
• Citation: 61 CCPA 63,486 F.2d 1077
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: REYNOLDS TRADING CORP. et al., Appellants, v. The UNITED STATES, Appellee.

61 CCPA 63, 486 F.2d 1077 (1973)

REYNOLDS TRADING CORP. et al., Appellants, v. The UNITED STATES, Appellee.

Customs Appeal No. 74-1.

United States Court of Customs and Patent Appeals.

October 24, 1973.

MILLER, Judge.

Appellee has moved to dismiss this appeal and to quash the mandate from this court to the United States Customs Court to transmit the record and other appropriate documents.

The petition of appeal, entitled as above, was filed with this court on July 2, 1973, and the said mandate was issued the same date.

This appeal seeks relief from an order of the United States Customs Court, dated May 2, 1973, denying appellants' motion for rehearing and to vacate and set aside "separate orders of dismissal entered in the actions enumerated on the Schedule attached to said Order entered in the above-entitled proceeding". Appellants' assignment of errors refers to "separate orders of dismissal entered in the actions enumerated on the Schedule attached to the Order entered by said Court on May 2, 1973."

Upon receipt of the petition, the clerk of this court telephoned counsel for appellants to obtain further identification of the cases encompassed by the order below for the purpose of the mandate to the United States Customs Court and was given the following: "Court No. R67/2398, etc." This was confirmed by letter from said counsel dated July 2, 1973, and received by this court on July 5, showing copy sent to the Chief, Customs Section, Office of the Assistant Attorney General (Civil) in New York City, and inclosing a copy of the May 2, 1973, order of the United States Customs Court and the schedule attached thereto. The mandate contains a reference to "Reappraisement No. R67/2398, etc."

On August 22, 1973, appellee filed with the United States Customs Court a Motion to Settle the Record in this case; and on August 24, the appellee filed with this court the present motion to dismiss and to quash, asserting that no valid appeal has been filed because of failure of appellants to specify with sufficient particularity their names and the cases which are being appealed. In a Memorandum in Support of Motion, appellee cites Meyer & Lange et al. v. United States, 4 Ct.Cust.App. 422, T.D. 33855 (1913) for the proposition that the failure to include the case number(s) in the initial pleadings is a jurisdictional defect and is not curable by amendment after the statutory time for filing an appeal has elapsed. (The last day for filing an appeal in this case was July 3, 1973.)

Although appellee appears to have been informed with sufficient particularity to enable it to file a motion to settle the record, it complains that it cannot determine from the pleading filed with this court which case is under appeal and that it was not made a party to any amendment of the pleadings to include the case designation set forth in the mandate. At the same time, appellee states that its action to remedy defects as to the scope of the record (the motion to settle the record) is not to be a waiver of any of the relief sought by its motion to dismiss.

We do not believe appellee can have it both ways. If it believed that it was being misled, surprised, prejudiced or damaged by defective pleadings, it should have moved promptly to quash the mandate instead of waiting until the United States Customs Court had gone to the time and expense of preparing the record and other documents pursuant to the mandate.

While it is true there are many Reynolds cases enumerated on the schedule attached to the order entered by the United States Customs Court on May 2, 1973, the only action of that court on appeal to this court is the order of May 2, 1973. Whatever Reynolds cases were encompassed by that order are encompassed by this appeal, and the only issue before us is the propriety of the denial of the plaintiff-appellants' motion by...