Slaker v. Connor, 61
| Decision Date | 02 January 1929 |
| Docket Number | No. 61,61 |
| Citation | 73 L.Ed. 258,49 S.Ct. 158,278 U.S. 188 |
| Parties | SLAKER v. O'CONNOR et al |
| Court | U.S. Supreme Court |
Messrs. P. E. Boslaugh and John A. Lawler, both of Hastings, Neb., for appellant.
Charles O'Connor and others brought suit in the District Court of the United States for Nebraska against John Slaker, administrator of John O'Connor, deceased, and the state of Nebraska, wherein they sought to establish claims to certain property within that state which belonged to John O'Connor at the time of his death. The petition contained three counts, none of which questioned the validity of a state statute.
Upon motion, the District Court dismissed the petition for want of jurisdiction, and thereafter allowed a broad appeal to the Circuit Court of Appeals. The latter (O'Connor v. Slaker, 22 F.(2d) 147) held the cause was properly dismissed as to the state, but that under two counts of the petition jurisdiction existed as to the administrator, appellant here. It accordingly reversed the action of the trial court and remanded the cause for further proceedings. The administrator then sought and secured allowance of an appeal to this court.
Manifestly, the decree below is not final. Under the Act of February 13, 1925, amending Judicial Code, § 240(b), 28 USCA § 347(b), appeals to this court from Circuit Courts of Appeal lie only from final judgments or decrees (Martinez v. International Banking Corp., 220 U. S. 214, 223, 31 S. Ct. 408, 55 L. Ed. 438; Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616) in cases where the validity of a state statute is drawn in question on the ground of repugnance to the Constitution, treaties, or laws of the United States, and the decision is against its validity.
Sec. 1010, Rev. Stats. (Sec. 878, U. S. Code (28 USCA § 878)) provides:
'Where, upon a writ of error, judgment is affirmed in the Supreme Court or a circuit court of appeals, the court shall adjudge to the respondents in error just damages for his delay, and single or double costs, at its discretion.'
Sec. 1012, Rev. Stats. (omitted from Judicial Code in its present form provides:
'Appeals from the district courts shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error.' 28 USCA § 880.
The thirtieth (formerly twenty-third) rule of this court provides:
2. In all cases where an appeal delays proceedings on the judgment of the lower court, and appears to have been sued out merely for delay, damages at a rate not exceeding 10 per cent., in addition to interest, may be awarded upon the amount of the judgment.
3. Paragraphs 1 and 2 of this rule shall be applicable to decrees for the payment of money in cases in equity, unless...
To continue reading
Request your trial
-
City of Renton v. Playtime Theatres, Inc
...See South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439 (1956); Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258 (1929). But see Chicago v. Atchison, T. & S.F. R. Co., 357 U.S. 77, 82-83, 78 S.Ct. 1063, 1066-1067, 2 L.Ed.2d 1174 (1958). The ......
-
Browder v. Gayle
...the appeal in South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692. The citation of Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258, is convincing that it did not place the stamp of its approval upon the decision of the Fourth Circuit in Flemming v. South C......
-
Thornburgh v. American College of Obstetricians and Gynecologists, 84-495
...see id., at 296-297. It remanded these features of the case to the District Court. Id., at 304. Slaker v. O'Connor, 278 U.S. 188, 189-190, 49 S.Ct. 158, 159, 73 L.Ed. 258 (1929), and McLish v. Roff, 141 U.S. 661, 665-666, 12 S.Ct. 118, 119-120, 35 L.Ed. 893 (1891), surely suggest that, unde......
-
City of El Paso v. Simmons, 38
...or decree of the Court of Appeals is necessary to the exercise of our jurisdiction over the case by way of appeal, Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258, which was followed without comment in South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692, 1......