United States v. Agne, 9202.
| Decision Date | 28 April 1947 |
| Docket Number | No. 9202.,9202. |
| Citation | 161 F.2d 331 |
| Parties | UNITED STATES v. AGNE. |
| Court | U.S. Court of Appeals — Third Circuit |
James P. McCormick, Asst. U. S. Atty., of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellant.
Gordon Butterworth, of Philadelphia, Pa. (George C. Dix, of New York City, on the brief), for appellee.
Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.
This is an appeal by the United States from an order of the District Court for the Eastern District of Pennsylvania directing the opening and vacating of a default decree. The facts necessary for the understanding of the legal question presented at this stage of the litigation may be very simply stated.
On June 19, 1942, a decree cancelling the appellee, Agne's, naturalization was entered, having been entered in default of answer by Agne to the petition praying such cancellation. On September 10, 1945, more than three years thereafter, Agne filed in the cause an "Original Complaint, in the Nature of a Bill of Review, Impeaching the Decree Entered * * * on June 19, 1942". On October 26, 1945, Agne filed another paper entitled "Notice of Motion and Affidavit" serving notice of his intention to move the court for an order opening and vacating the decree of June 19, 1942. On April 26, 1946, the District Court entered an order denying a Government motion to dismiss the Complaint in the Nature of a Bill of Review and granting the motion "for an order directing the opening and vacating of the default decree or order of June 19, 1942."
The first question presented to us on the appeal and the one which we think concludes the matter at this stage of the proceedings is whether the order is appealable. No citation of authorities is necessary for the proposition that the jurisdiction of a Circuit Court of Appeals is statutory. Unless the cause comes to us within the statutory grant of power we have no authority to deal with it. Certain interlocutory orders are by statute made appealable, but no one suggests that the present case falls within any of these.1
The general grant of jurisdiction is found in Section 128 of the Judicial Code.2 We are given appellate jurisdiction to review by appeal final decisions of the District Courts.3 The statute does not define what is a "final decision" and courts have, from time to time, attempted a variety of definitions and descriptions which, as the commentators have pointed out, frequently leave out points which the definition writer would have included at the time had he thought of them. Judge Dobie points out that an interlocutory decree may come so close to one which is final that the line of discrimination is too fine to be readily perceived.4 He states, also, that in applying the test the federal courts have regarded substance rather than form and have been guided by practical rather than theoretical considerations.5
A reference to the facts stated above will show immediately that the instant case is not one of those where the distinction between a final order and an interlocutory order becomes vague and hard to find. The order of the District Court did nothing but open up for further consideration the action of the court in 1942 which cancelled Agne's naturalization. It did not decide that Agne is entitled to have his citizenship restored; it is entirely consistent with any order made so far that the revocation of citizenship may stand at the conclusion of whatever further proceedings may be taken. We do not see how in any sense of the word the order can be considered as final any more than can an order granting a new trial be taken as final. This Court has said before that the new trial order is not a final one.6
It is suggested by the Government that the action taken by the learned District Judge was beyond his jurisdiction since the order he made was entered so long after the decree of June 19, 1942. We do not pass on the merits of this point. Even if it is correct, we find no suggestion in the decisions and authorities we have examined that indicates that an order, not final in its nature, becomes forthwith appealable because the court making it had no jurisdiction in the premises.
We think the language of the 9th Circuit in Waialua Agr. Co., Limited, v. Christian, 9 Cir., 1931, 52 F.2d 847, reads directly upon the facts of this case.7 Said the Court: ...
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