Costas Hadjipateras, Nicholas Hadjipateras and Dimitri Dracos v. Pacifica, S. A., and George Tsakalotos

697 States, Cir., 8 259 F.2d United 430; PER CURIAM. States, Edwards v. United 1956, appellant Frank September, In U.S.App.D.C. 152, 103 F.2d dis- western in the indicted Thomas was Berg States, Cir., 1949, v. United charge Washington of re- on a trict of F.2d 122. The conviction sentence and concealing illegally imported ceiving and guilty plea which based follow are Appellant counsel retained narcotics. solely entirely plea upon and said during guilty. However, pleaded not upon any may not evidence which have 1957, appellant February, the trial by improperly acquired prose- been guilty after plea of not his withdrew cuting authorities. United States v. plea day entered a trial and one-half French, Cir., 274 F.2d years guilty. to ten sentenced He was Sturm, Cir., 1950, United States v. than three penitentiary. More in the Kinney States, F.2d v. United appellant years filed with the thereafter Cir., 1949, 177 F.2d 895. District for the Western District Court Washington Affirmed. a Motion to Vacate pursuant to 28 U.S. Aside Sentence Set motion The basis of the C. § illegally appellant searched was police property private state his own prob- no warrant and no had officerswho search; search cause for such able finding heroin and led resulted HADJIPATERAS, Costas Nicholas Had appellant’s and indictment. arrest jipateras Dracos, and Dimitri by the district was denied motion Appellants,

court. action The trial court’s PACIFICA, A., George Tsakalotos, S. denying motion was not erroneous. Appellee. By guilty appellant plea his foreclosed No. 18921. right objections man his to raise upon United States Court of he ner in which evidence Fifth Circuit. obtained. This evi was indicted was May 15, 1961. guilty plea, dence, was not because his against him. Had he stood trial used introduction, objection if made his court, by the trial could and overruled Under have raised been belatedly circumstances he not raise under 28

the contention U.S.C. § States, Cir., United Eberhart v. Appellant represented

262 F.2d 421. counsel of in the trial his own

choosing. changed plea his He guilty guilty, presumed, it must be knowledge of

with full the facts and of consequences thereof because of his

representation by counsel. As a matter attorneys appellant rep two

of fact had resenting changed him at the time he voluntarily plea. his When defendant knowingly guilty pleads at his trial ju this constitutes a waiver of all non including defenses, risdictional de J., Jones, C. dissented. this motion. Hall v. fenses raised Orleans, Kohlmeyer, Jr.,

Charles New La., appellants. City, Poles,

John York Donald G. New Orleans, La., J. Lindquist, W. A. New Heights, Sheridan, Jr., Canal Balboa Zone, appellee. for BROWN, RIVES, Before JONES Judges. Circuit Judge. BROWN, JOHN R. Circuit question inter- in this The substantive per- locutory appeal libel in is whether a foreign attachment sonam with writ of admiralty juris- was a claim within not, the diction of the District If Court. pursuant writ of attachment to which Pan-Agiotis in the D. now remains SS custody Marshal’s should vacated since post respondents inability assert an satisfactory attachment release of A own bond. of our Act, Interlocutory Appeals under presented 1292(b), at U.S.C.A. un- better threshold. Both matters are briefly just what derstood if we outline occurred here and below. personam March 1961 libel in for the

was filed in the District Court brought by the own Zone. It was Canal (formerly the ers of the Athenoula SS Ketty D.) against named res four SS pondents.2 form, In the traditional Admiralty Benedict, Form 291 at prayed if none the libel No. respondents couldbe found District, a attachment be issued writ of Admiralty pursuant to the Rules.3 Writ against Pan of attachment issued the SS alleged agiotis D., property to be the D., Panagiotis respondents. The SS transiting Canal, then was seized custody Marshal remains inability of the asserted because alleged here) stockholder, (appellees whom is to be a of- libellants were 1. The George Shipping Pacifica, and director of Jason Tsakalotos ficer ex- S.A. majority capital ercising complete (owner dominion and control stock operations Shipping. Pacifica). over the Jason U.S.Sup.Ct.Adm.Rule U.S.O.A.; respondents 2. named in the libel Admiralty here) Shipping (appellants Local Rule 23. Jason District Court are: Admiralty Benedict, Trading Corp. 288-294 at §§ individ- and the three See & Uadjipateras, uals, Had- Costas Nicholas 345-305. Dracos, jipateras and Dimitri each of security necessary respondents April 7, motions to dismiss on 1961. On file day respondents same her release.4 Proctors for allowing appeal, moved for an order S.A., alleged Pacifica, The libel entered, and such n jwner an order was also D., Ketty had entered of the SS April April 7.5 ten and within respondent into Jason a contract with days of order de District Court’s management Shipping Company for the clining jurisdic dismiss want operation stated for a of that vessel tion, appellants-respondents filedwith period Under this contract of time. presented Clerk and this to a agent managing operate ves- supporting Court an af engage- sel, freight freight obtain fidavit. This was an and, freight ments, monies collect the hearing” appeal “immediate on and the deducting expenses, operating after all why an order to show cause order the But, remit so the balance to the owners. April “denying the motion for dis continued, supporting papers the libel and * * * vacating missal and for the performing a time the contract for eign attachment should not reversed be collecting freights and $250,000 remained there foreign and the libel dismissed and the belonged owners * * * attachment vacated.” managing agent which the other and the Following parte presentation, this ex respondents wrongfully appropriated in this Court entered its formal show cause sought breach of libel the contract. The April fixing April order of 27 as the “against respondents a decree of the all hearing application time of on this [$250,- herein for the amount aforesaid hearing appeal an immediate and together 000], with and costs interest ” * * * request the for reversal and vacation with, course, catch- the usual Thereafter, April the attachment. on may all “and that the libelants have such libelants-appellees filed their motion to other further and different relief as dismiss was the the order because just.” Benedict, be Admiralty See 2 § a final neither under 1291 nor an one § 263 at form 52. interlocutory admiralty decree “determin- respondents April 4,1961, ing rights par- on the and liabilities of the filed a motion to and 1292(a) (3). dismiss the libel ties” under A cause show § thereby vacate the on the hearing along attachment order was issued for with ground prior that this was a account Up suit for the motions. to no this time ing beyond Judge was ad therefore formal certification the District miralty jurisdiction. interlocutory After briefs and for an under arguments, (b) sought, District Court denied the obtained, had been or filed argument by ap 4. On the it Sep- was asserted amended, 28 U.S.O.A. pellants-respondents 2, 1958, although previously the attachment tember Panagiotis beyond power of the SS appellate was ineffective D. jurisdiction person supplant to vest over the formal allowance respondents parties appeal by these since other of an notice. Alaska Pack- respondents Pillsbury, than these owned the ves ers Ass’n 174, 301 U.S. See, g., sel. e. Swift & Co. Packers 57 S.Ct. 81 L.Ed. 988. But this Compania Caribe, precautionary perhaps Colombiana Del error accidental- S.A., ly 70 S.Ct. an additional basis for a nunc affords pro 94 L.Ed. 1206. The record fails tuno certification under § 1292(b). to in presented dicate this was to or upon by preceding Wednesday, April 12, acted Court below. We briefly informally do the matter was therefore not rule on this facet. by long telephone discussed distance with change Judge 5. Proctors resist pres- to their esoteric another and a time fixed for calling. papers Not since statute was entation of the in Chambers on notiee-of-ap- April amended to conform to Judge’s Friday, 14. At re- practice peal 73(b), quest postponed of F.R.Civ.P. Monday, this was U.S.C.A., necessary April 17, presentation has it been secure before admiralty, allowance of Hives New Orleans. Consequently, or amended for al- 2d 548. together here It con April 26 alone. der of can stand such an lowance of pre certificate, adequate tains an motion respondents filed a April 26 argument on on sented to us as it was recon- requesting Court with the District presented April 27, it was deny- April 7 the order sideration of ing following 10-day period libel dismiss motion to day Ordinarily the before. a certification want a for the Court of would April 1292(b). on done This was under § 1292(b) writing, does mal one in but § pro entered order a formal nunc imposes prescribe. not so statute During argument April 27 tunc.7 Appeals. no limit copy of the cabled received a this Court now, Consequently, and at actions our from the District Court. argument, allowance constitute has been think that there We interlocutory appeal. 1292(b) compliance so §with substantial asus properly before this that, we think More than timely interlocutory made If order. properly be certified, no can be there considering April us fore “may ma presents matter that that it 26 as amendment to pro tunc nunc terially termination ultimate advance April our cause order of As show 7. Indeed, litigation.” appellants- if appellants- April reflects, of order 17 of respondents lack are on the correct presented request respondents us their admiralty jurisdiction, case the whole of the attach for reversal and vacation the Court for all. Neither ends once and days April 17, ten on ment a date within parties put ex should be nor 7) (April appealed of order from. § pos pense such a in time for a trial of 1292(b). In the District the meantime congenital deficiency. sible April an allow Court on 7 entered order ing appli superfluous several theories the an now order —an desirability timely (see 5, supra) apart of and the from the new cation note many sufficiently procedure 1292(b). prior an it certified. Since § denying appli occasions, momentarily positive a final is judgment appealable the order was not in that mandamus, prohibition it or the under 1291 cations § statute, positive 28 was not U.S. seems almost as that it like under the all writs 1651, dismissing appeals admiralty in order under C.A. § Cir., taken, 1292(a) (3), Lauro, improvidently have, Pannizzo 2 we where § 1955, long expired, 222, 10-day period 228 F.2d District since Court suggested formally the matter be retained sufficient control the case. parte Watkins, 1958, Cir., Ex F. resubmitted to the trial court rede- 5 260 “ ** * order, reciting 8. The Court after earlier discretion, hearing April thereupon, permit 7, in its and the order of went order, on to be taken from such to state that on further reconsid- application made to it deci- within ten eration the Court adhered its * days opinion but of the order *.” sion was of the 1292(b). previous controlling § 28 U.S.C.A. involved “a formality required by law” on which substantial Little stat- ground ute. The District must make the for difference exists and that “may materially and an ad- certificate ten immediate days Ap- be made to the Court of vance determination” must the suit. peals. appeal, however, 1292(b) No § This fol- notice certificate under preceding application. by required lowed detailed recitation of reasons following why by way rules of the Court decision either our Court See the disposition. Appeals: D.C.Cir., 9%; Rule 2nd would advance final fur- 9(d); Cir., specified 11(2); Cir., en- Rule 3rd Rule ther “this Cir., pro 35; 8(2); Cir., nunc tunc Rule 6th Rule lieu of the order 4th tered Cir., April 28; 88; Cir., Rule Rule under 9th heretofore entered date 8th 12, 7, Cir., 28 U.S.C.A. 1961.” 10th Rule

702 1292(b) possible 1292(b) cer termination and a while literal Deepwater by parte Ex would Ex tification it. confine it to a “civil action” 546, ploration Co., Cir., 1958, keeping secondary meaning 260 F.2d now 5 with the Deepwater Exploration remand, Co. Federal attributed to that term D.C., Co., Procedure, F Ins. 167 Rules of in Con- v. Andrew Weir Civil we held Cir., Watkins, Barge Lines, .Supp. parte 5 tinental Ex Grain Federal Co.v. Cir., in 1958, 548, 1959, 240, 241-42, certification held 5 1959 260 F.2d 268 F.2d Cir., adequate, F.2d A.M.C. ty 271 that it to admiral- extended Co., Supreme Mutual Ins. Jewell Dealers cases as well. v. Grain parte Cir., 1959, agreed, Ex F.2d affirmance Lloyds (Gulf Underwriters at London S.Ct. L.Ed.2d 1961 A.M.C. 1. Storage Shipside Corp. Underwriters Likewise, far re we have thus Lloyds Cir., London), F.2d at temptation sisted chart out the 209, 210, reversing, Schwabach & Co. types of cases or the circumstances D.C.E.D.La., Storage Co., Shipside Gulf type which this new should only F.Supp. 105. Since be allowed. The statute was framed possible open appellants-respond relief to appeal language “controlling broad and the term n ents by way the date question of law as to which there is sub application (April 17) for reversal ground opinion stantial for difference of vacation of the attachment was under ” § * ** “may materially advance 1292(b), entirely proper we think it * * * litigation termination formal, imperfections ” technical of * * * casting avoids un timely action to be corrected yielding prior pro molds of terms of n nunc pro April tunc amendment of Woodbury, cedural art. United States v. Cir., 1959, 784, 9 263 F.2d 787.10

Of course we must find our jurisdiction to hear a matter in a statute Each be is to or authoritative rule. But this Court light looked at then in the under invariably way approached this in a lying purpose reflected in the statute. hypercritical .avoids technicalities in the Sperry Corp. Telephone Rand v. Bell construction and of such stat Laboratories, Inc., Cir., 1959, 2 F.2d 272 this, example, utes. We see for our in 29; Rayon Cir., Consultants, Mueller v. 2 concerning (cid:127)decisions the time char Bird, and 1959, 271 F.2d 591. We need no have acter of a notice of Roth v. apprehensions about its abuse. For un 259; Cir., 1956, 257, 5 239 F.2d Des Isles many procedural facilities, like this 236; Evans, Cir., 1955, 235, v. 5 225 F.2d wholly Judges committed then —and 36, Hill, Cir., 1939, Crump v. 5 104 F.2d only by majority.11 a %ths 38; Campbell, Cir., 1960, Carter v. 5 285 Moreover, F.2d 70-71.9 We have followed this judge-sought, it was a pattern judge-made, judge-sponsored as we seek to utilize this new enactm remedy Judges appeal. Thus, of an prior ent.12 Federal from their Other cases take similar view. Ran 11. Allowance takes affirmative action dolph Randolph, U.S.App. Judge majority 91 the District and a of a 956; panel Appeals. D.C. 198 F.2d Shannon v. of the Court of Thus States, U.S.App.D.C. Judges United three out of four must concur. 479; Kirksey 4, 206 F.2d v. United pursu- 12. The amendment was introduced States, 1954, U.S.App.D.C. ant to action the Judicial Conference 499; Boykin Huff, 1941, F.2d of the United States. After close and App.D.C. 121 F.2d Blunt v. study by extended a committee under States, 1957, U.S.App.D.C. United chairmanship the er, John J. Park- 266, 244 F.2d 355. actively sponsored its enactment was Woodbury clear, Cong. 10. As the case makes the Conference. 1958 U.S.Code not, disposi- example, Admin.News, p. need for issue & Vol. Hear- “controlling question.” ings tive to be a before Subcommittee No. 3 of the only very ship; purpose more so from not to a its professional practice, and adjudication of physical, opera gained effectuate the economic experience in the acutely litigation, employment And tion and today’s complex were of a vessel. First, controversy things. what is fruits cer here principal in are aware of two matter, completion subject operation. of such dispatch tainty in the purpose, piecemeal thing, judicial sense of its makes business ship. undesirable. and its result center permitted in some states all around as de which It meets second, all ancient occasions of the tests both there are But fy description in Fruit modern.14 precise or Kossick United delineation orderly Co., 886; Benedict, ad Ad practical matter S.Ct. as which miralty, & by the neces 64-66 at Gilmore §§ is frustrated ministration Black, Admiralty judicial 1-10 at sity precious Law of a waste §§ through grinds a final while case do With that established—indeed we through judgment medium as the sole appellants-respondents think that iso of some test the correctness which to challenge may do either it-—what or fact, law, of point identifiable lated present there about the situation upon procedure, or substance arising dispute takes a maritime from a way or defense case the whole realistic admiralty jurisdic- contract out of the give towas The amendment will turn. certainly remedy It tion? not the machinery appellate apart steps such. For from the followed flexibility thi’ough 1294 a considerable principles applied (legal, equitable or or immediate, operating sole under the sought both), simple decree what is is a Judges that within so broad control money. every for libel That is the aim of disadvantages piece limits reasonable cargo damage, payment charter might judgment appeals final meal and hire, recovery under a insur- marine general ap avoided. It is that both be proach nearly policy admiralty ance all tort handy than mod rather the use litigation. decree, and contract out to 13—which turn be Shib ifiers obtained, simple will be in terms guide ap should us boleths—that require swift its satisfaction. will determining plication and whether extraordinary injunc- no writs such as procedure specified substantial has been possessory tions orders. ly satisfied. anything Nor is there either Thus the substantive correct foreign admiralty offensive in or to the denial Court’s the of the District legal ness adjudicatory steps the principle by of fact or admiralty dismiss for to want motion jurisdiction the claim is trans properly us. is before money. muted into the final decree for requires that, do not think much we it argument We heard much on in about to demonstrate that the deci assumpsit though discussion debitatus as somehow right Indeed, only the one. the thing sion was the would whole strand on these difficulty become mesmer arises we concepts. argument appar ancient “accounting.” by the word ized ently is that the while net amount re maining deducting operating with, ex begin every- is the contract To gross penses earnings from classically would or thing known as a maritime dinarily subject admiralty fit ship. be the It concerns a It relates contract. expensive case,” Judiciary Bobolakis Com- on and the H.R. Committee p. Report 1667, pañía Panameña Marítima San Geras- 9. House No. 6238 at S.A., D.C.S.D.N.T.1958, pp. 2, adopted simo, Cong. Sess., 1, 168 F. 2d 85th Supp. 236, report 239-240. the Judicial Conference the part of the amendment as House on this perhaps an affectation to search 14. While Report. example, passes the that for closest “strictly See, example, construed,” Fruit Co. v. United test also. United 13. for Laboratories, Inc., Shipping Board Merchant Fleet Bison States Milbert v. D.C.D.1930, Corp., Cir., 1958, ‘big’ 42 F.2d 431, 222. 260 F.2d and “the Hedger proval Transportation E. retained W. jurisdiction still while 1946, Bushey Corp. Sons, Inc., Cir., an managing agent, takes & it somehow 321, 788, is 155 F.2d if this makes flavor A.M.C. law and common odious “ principle con dispute over clear. ‘It is that court good true a faith a mere agent admiralty for will not entertain suit and the a the contract struction of example, “wrongfully,” accounting as, money as such: retains the accounting absconding, con between co-owners comparable to action adventurers, vessel, misappropriation. or maritime between or dishonest cealment * * * principal agent, . just or us, it was between fine for This is too true, Nevertheless, rejected simi it has never been when it Supreme Court Hanioti, accounting necessary when complete Archawski lar dialectic rights 617, adjudgment L. over 532, 1956, 76 S.Ct. juris admiralty independent there which test has 676, 742. 1956A.M.C. Ed. diction, suspend in that it its remedies will one was the broad announced midway require parties under resort character maritime herent ” 684, page quasi to another 692, con court.’ U.S. at lying Resort transaction. page admiral at 866. S.Ct. principles not oust does tract concludes, “so ty. Supreme Court As the rule, Of course a sensible that is long out arises asserted claim as the necessity compelled by indeed one admiralty contract, things maritime admiralty unless is to confined be U.S. it.” 350 over has simplest of transactions. It is page page at 76 S.Ct. at “accounting” only here in the sense any real basis were if there ever And “counting.” there must be a All of impera doubting capacity not the managing receipts by —if collections and agent admiralty duty to consider tive —of must determined totaled. arriving just at equitable doctrines expenditures Then all of the and allow- certainly dispelled in judgments, it was similarly able deductions must be ascer- Compania Colom Packers v. & Co. Swift expenditures tained. The deducted are Caribe, A., U.S. S. Del remaining biana 684, receipts and the balance 1950 A. 94 L.Ed. 70 S.Ct. judgment. amount That admiralty If the M.C. problem, frequently complex, in suits say penetrate power fraud to parties, arbitrations under charter standing be of one name vessel general average libels to contri- recover another, longs then effec in fact to testing propriety butions vessel, per lays tively it is hold of that Average Adjustments, mat- and for that especially fectly evident, avail with the covering ter claims and in collision libels ability such as de of modern innovations detention, losses, claims for cross hull claratory judgments, 28 U.S.C.A. § cargo personal injuries, damage, and the equity hoary expressions about like. admiralty require careful re-evaluation. If, process because of ad Admiralty Black, 1- Law of & Gilmore goes beyond 2, judication plus step 14 at 38. admiralty power, have loses we would things spectacle essentially objection mari that then the faceWe automatically accounting. thereby Despite time and for an a suit this is supremacy clause, Fos the constitutional and Swift Archawski doubts which Co., 1961, might cast, sick United Fruit 81 S.Ct. we v. modern cases and other being such, 886, law, accounting into or forced common that if it is assume equity, prece In courts for determination. jurisdiction foreclosed under is ap citing deed, even more absurd. Swift, it would be with But dents.15 1855, 477, 477, 1859, Thompson, 17 How. 58 U.S. 15 L. 22 How. 15. Ward Orleans, 330, The 330, Ed. Steamboat Grant 16 L.Ed. 63 U.S. 175, 175, 9 L.Ed. Pet. 36 U.S. Poillon, 20 How. Maynard, Minturn 15 L.Ed.

7Q5 diversity barring would, knowledge lack the accident appellants’ of the essentially citizenship, proctors federal send esoteric of problems allowance appeal no there is admiralty state courts since required. not jurisdiction myself mari- side over a I juris- on the civil cannot find aided on the question by v. Inter- filing ap- time action. Romero dictional cause of of an Co., 1959, plication hearing, by national Terminal U.S. for an immediate entry 1959 the fixing 79 S.Ct. 3 L.Ed.2d of an order hearing, A.M.C. or informal discussions with judges. things, individual None these The contract is The con- maritime. me, any so it seems to have relation to grows troversy directly out a claim meeting requirements of Section nonperformance The of this contract. 1292(b). provides: This section sought money relief is a decree. Neither adjudi- equitable principles making resort to judge, “When a district cating performance nonperformance, in a civil action an order not other- treating process appealable nor the arithmetical section, wise under this evidentiary opinion items in the determination shall be of the that such decree, destroys of the amount controlling of such involves a any way admiralty jurisdiction. By of law as to which there is substan- ground none of these has the salt lost its savour. tial opinion for difference of that an immediate from Affirmed. materially advance JONES, ultimate (dissenting). termination of the liti- Circuit gation, writing he . shall so state in thought jurisdic- If I this Court had in such Appeals order. The Court of agree tion of this I could with the may thereupon, discretion, in its majority ju- that the district court had permit to be taken from admiralty risdiction as a court of order, such made controversy brought which the libellant days it within ten after the before it. But I think this Court does order; Provided, however, the application any jurisdiction have over the for an hereunder and therefore I dissent. stay proceedings shall not in the dis- majority Court, The of this the district judge trict court unless the district .court, parties and the seem to be judge or the aor agreement attempt ap- this is thereof shall so order.” 28 U.S.C.A. peal from an order and that 1292(b). compliance 1292(b) with 28 U.S.C.A. § chronological sequence required give in order to this Court pertinent,1 them, events here as I view majority are as follows: opinion requirements (a) April 7,1961, On of the statute the district have been met. Notwith- standing entered the order2 spondents majority that I the re stand before the stigmatized appeal; being seek hy- with the brand of perteehnically critical, express, I (b) April 11,1961, respondents deference, disagree- my conventional appeal3 filed notice of court; in the district ment. (c) April 19, It does not seem to me that the asser- the libellants by seeking tion of is buttressed the filed in this Court their motion Omitting unnecessary dismissing complaint 1. the motion and or- order the libel and appeal, vacating der the allowance of the herein the attachment of setting Panagiotis hearings, by motions and orders for the vessel D. the Mar- S/S conferences, Court, both informal this for- shal of hereby be the same is mal, judges. with individual denied.” * * * “Ordered, Adjudged 2. and Decreed that 3. “Please take notice that re- Respondents spondents cause, the motion of in the for an the above entitled nearly appeal permitting appeal re- in it was but

to which Court the dismiss the interlocutory days the passed twice before the ten had cited that the order was judge was appealable; opinion that district and not stated the making prerequisite ten a “within to the 26, 1961, April (d) district the days” application to Court. this pro tunc “nunc an court entered order April 7, 1961. in of order” of lieu the Congress require the to That intended was, apparently,4 April application Appeals of that The order the of to Court except April entry days of as order the same the be made from the within ten that appeal order second for the recital of the order from which the the opinion sought by report of the was the district court of shown herein previously entered Judiciary that “the order which from Senate Committee controlling question lawof quote: a involves I * * * appeal from immediate and that place “H.R. the exist- 6238 would materially de- may advance order ing provisions section litigation.” There termination of section, and (a) subsection for ap- application this Court no has been (b), would add a subsection new permission to take an possible virtue of which would be it peal. record The absence judge for a in a civil action district application and certificate, of the Court’s ap- to make an not otherwise something be the order seem me subject pealable under section 1292 imperfec- other than “formal technical writing stating his appeal disposed deli- be tions” can con- order that the order involves a cate soft bristles. brush trolling question to which of law as tech- ground formal from these so-called Aside dif- there is a substantial imperfections me seems to there opinion, nical im- an ference and that may re- to quire reason which should appeal be a further mediate from the materially dismissed. that the be ter- advance the ultimate April litigation. which from order was entered Follow- mination of the attempt ing take an made to was written of such a the issuance may statutory requirement It statement, part be that the court’s of the judge “in litigant ap- shall state order, the district make an opinion imme- such order” his that an plication appeals to the court of entry ultimate days diate will advance the within after the termination, techni- is a formalistic and permit therefrom. order to ought cal not be insisted matter that ###### upon. But nor tech- it not formalistic against delay my belief, nical, protection “Another legislation by the taken within the authorized in this time which contained ap- may permit requires provision This is the litigant statute. Court appeal- peal from an order otherwise to make .says, “application days if, as the after the of the order able statute days appeal.” is made to it within ten entry to take such he desires days Cong.2d S.Rep. order.” The ten ran U.S. 85th Sess. During Cong. 1958, p. April allowed 7. Code & Adm.News no to this there had been telegraphed, and, course, hereby Court to the United States uncertified during copy argu- the Fifth Circuit from the which was delivered copy order, A of this entered herein ment. attested as decree copy by day April, Clerk by the district 1961.” true 7th court, was received the Clerk of this ap- part of not a the record on It was day after the matter was sub- subsequently peal nor been made a mitted. part of the record. before in the form of all, only court, if at

707 taking appeal condi of another no- the of treats waiver service upon appeal in the equivalent inclusion tice of tioned as no- the the of a desira judge’s opinion the appeal;7 per- tice the district bility while still another the appeal. allowing After mitted appeal immediate an order on the compliance original condition regarded time the for record to be as making elapsed equivalent for period appeal.8 had application of a notice of expired, permission had be noted that cited the case last right by majority that, restored the extinct concluded under the facts de By the a roll of the calendar. appeal back case a been notice of had majority expressed timely in the termination filed. by nunc opinion, may, the district court days It seems me had to that when ten orders, pro orders tunc or amendments elapsed entry after the of the district taking an extend the time for any opinion court’s order without provi This seems to me violate to judge, requires, district as the statute 5 only 28 Not sions of U.S.C.A. 2107. any application being without made 2192(b) days by had expired ten fixed Section permission to appeal, this Court for to April 26th, fifteen but as the requires, statute did this Court days by had prescribed 2107 Section require acquired not and could not have gone by. Except permitted stat as any jurisdiction of an such neglect based ute in the case of excusable persuaded, order. I am not ma- as the entry of the on failure to learn of jority suggest, seems that we should judgment, decree, not order or assert over be- district heretofore been the rule up an- cause the could matter come power court has appeal. to extend the timely taken other from another Cir., States, 5 Knowles United v. containing proper am recitals. I Padgett F.2d also v. 260 852. See done, not convinced that this could be States, Cir., 1959, F.2d 272 United 5 and I not or would decide that it could Equip Corporation Guiberson v. advisory opinion. could not be done Engineers, Cir., 1958, F.2d ment 431; 5 252 conferring juris- requirements If the Virginia Ship Land Miami Co. v. met, juris- diction are not not we do have building Corporation, Cir., 201 5 attempt diction and should not to exer- 506; Lejeune In F.2d v. Midwestern desirability deciding a cise it. The Co., Cir., 1952, 5 surance F.2d 197 jurisdictional one Hill, Crump Cir., 1939, 36. 5 F.2d v. tests. Court, cited Of the decisions of this think, grounds upon are, I There other majority hypercritical avoid the majority opinion which the untenable technicalities, jurisdictional require if, reasons need but no other be stated ap ments, there are those which construe believe, I there has been as a failure plications pauperis, requires forma do what statute within requires ap time the statute that it done. taking the time for filed within Being minded, I so compliance peal, with the substantial filing appeal;6 requirement for notice of Dissent. proceeding Evans, Cir., any action, in ad- suit F.

5. In 6. Des Isles Bird, Cir., miralty, the notice of shall be 2d Roth ninety days after F.2d 257. filed order, judgment appealed or decree Hill, Crump Cir., F.2d decision, from, a final and within if it is days entry if an in- it is fifteen Campbell, Cir., terlocutory decree. 285 F. 8. Carter v. 2d 68.

Case Details

Case Name: Costas Hadjipateras, Nicholas Hadjipateras and Dimitri Dracos v. Pacifica, S. A., and George Tsakalotos

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 15, 1961

Citation: 290 F.2d 697

Docket Number: 18921_1

Court Abbreviation: 5th Cir.