*1 herein, and desist the cease modified As HAND, N. Before CLARK AUGUSTUS affirmed, and enforcement order the is FRANK, Judges. and Circuit modified, thereof, is as Ordered. HAND, Judge. Circuit AUGUSTUS N. question appeal
The is whether an here days seventy-one after judgment taken was originally taken in The action was time. brought admiralty for a damages in to range Navy magnetic United States channel Steamship Company when the Isthmian dropped Ranger” vessel her anchor “Steel v. CO. S. S. UNITED STATES ISTHMIAN range in the the area where was located. Isthmian to dismiss moved the amended Appeals Court of United States jurisdiction for admiralty libel in lack of Circuit. Second and, by April 17, 1945, an order dated the 5, Argued March 1951. amended libel dismissed against was as the Ranger” “Steel and in so far alleged as it 5, 1951. Decided March personam a claim against in the Isthmian- 21, Steamship Company the Opinion was trans March 1951. case Filed
ferred the side of the to civil District Court by jury a trial for a in accordance with the principles governing civil An- actions. appeal .order from that was thereafter taken but to this court was as- dismissed premature ap on that ground order the the pealed from final. was not the- Thereafter case was tried in the District Court and resulted in a for verdict Isthmian Steam ship Company, from which appeal an was appeal taken. The was taken too if" late properly the action was transferred to the side, civil but not taken too late if the suit admiralty. regarded was to be as one in Our decision in United States v. The John Williams, R. 2 144 Cir., F.2d which 451, Judge, Prank, Circuit dissented. Supreme by the Court refused to review certiorari, admiralty indicates that was. jurisdiction without and that the transfer- respects to in all proper. the civil was side any But event the in District Court ordered' a-, and, whether the transfer or not it made mistake, jurisdiction to make the or had Accordingly, the action der. became a c-ivil action, subject relating- to and was the law appeals in such actions. That to law when plaintiff applied left the in default in talc— *2 663 sixty order, be only of cease virtue that erroneous to appeal it mg its because had n days dis- ninety admiralty. Consequently, before not in appeal, and within which to de- ap- appeal, should missing the the I think we days as were it have had would admiralty. If cide that was in error. in whether order peal from a decree one think, appeal so, timely. appeal, the I is Therefore, the the motion to dismiss properly granted. was
PER CURIAM. appeal. grant- Motion
Motion to dismiss
ed, open lack appeal court for dismissed in appellate jurisdiction.
of FRANK, Judge (dissenting). Circuit UNITED STATES. ICENHOUR v. appeal No. 13051. been I the should not have think dismissed. Appeals, of States Court United admiralty. But brought This was in suit Fifth Circuit. to court ordered it transferred the district 20, 1951. March court, a the common law of the for side by Appellant appealed from jury. trial order, but court dismissed that
that this ground the appeal, on the that first order appealable. interlocutory and not
was
Thereafter, a the was before case tried a returned for defend-
jury, which verdict on judgment the entered
ant. From final appeal. plaintiff to now seeks
that verdict appeal
My colleagues have ordered this
dismissed, is the that the suit ground on suit, (non-admiralty) where notice
a civil n of days appeal must filed within sixty be plain- judgment, of entry
after whereas seventy- appeal of was filed notice
tiff’s days a in ad- If this is suit
one thereafter. days
miralty, ninety had to no- plaintiff file timely. is appeal, appeal the of and
tice my colleagues rest on their decision
But transferring the that the order ground
the law common side constituted to the suit appeal purposes, re- suit for a civil
this judge of whether not the trial
gardless or al- ordering that transfer and erred in plaintiff held)
though previously we (as appeal order the from that until
could not judgment the final from
court entered appeal. trying is now to plaintiff which course, proper a agree. Of in
doI not proper.1
case, a transfer order is such case, of if, the facts this the order on But erroneous, not, by the suit did then was Cory 226, 229; See, g., Bros. & Co. States rel. 141 F.2d v. United ex Press 1. e. States, 1010, Cir., 2 51 prich & F.2d v. James Elwell United 1013; Co. W. & Son Paper 939, Cir., v. American Co., Prince Line James Richard 2 250 F. Cir., 1053, Co., Cir., Exports, F.2d 2 2 55 1056. v. Conners Marine Sons son &