Atlantic Lumber Co. v. Bucki & Son Lumber Co.

Fifth Circuit

Atlantic Lumber Co. v. Bucki & Son Lumber Co.

92 F. 864, 35 C.C.A. 59, 1899 U.S. App. LEXIS 2201

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 3, 1899

DocketNos. 738 and 755

StatusPublished

Cited by7 cases

This text of 92 F. 864 (Atlantic Lumber Co. v. Bucki & Son Lumber Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atlantic Lumber Co. v. Bucki & Son Lumber Co., 92 F. 864, 35 C.C.A. 59, 1899 U.S. App. LEXIS 2201 (5th Cir. 1899).

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Opinions

On Motion to Dismiss.

PARDEE. Circuit Judge.

The defendant in error has made a motion to dismiss this writ of error on the ground that the judgment sought to be reviewed is a judgment dissolving a writ of attachment issued in a pending suit, and is not a final judgment within the meaning of the act of congress creating this court. 1 Supp. Rev. St. (2d Ed.) p. 901. The suit ivas commenced by plaintiff in error on the 1st day of October, 1897, by the issuance of a summons ad respond-endum in an action of assumpsit. On the same day an affidavit was filed for an attachment, on the ground that the debt was actually due, and that the defendant lumber company was about to remove its property out of the state of Florida, and was fraudulently disposing of its property, and an attachment issued. In the course of the proceedings, after much and formal pleadings in the main case, the defendant moved to dissolve the attachment on issues of fact raised upon the formal pleadings, wdiich motion was tried by the court without a jury (a jury having been waived by written stipulation), and the attachment was ordered dissolved, no decision being then reached on the merits nor any final judgment rendered in the case. From the order dissolving the attachment this writ was sued out. In Leitensdorfer v. Webb, 20 How. 176, 185, such a judgment or order is held not to be a final judgment from which a writ of error will lie; and the same case also decides that a rule in the state practice allowing appeals from orders dissolving attachments will not affect the practice in the federal courts. The question involved here seems to have been well considered and well decided in the case of Hamner v. Scott, 19 U. S. App. 639, 8 C. C. A. 655, and 60 Fed. 343, and we think the reasons and authorities there given should control our action. The writ of error is dismissed.

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On Motion to Dismiss.

PARDEE. Circuit Judge.

The defendant in error has made a motion to dismiss this writ of error on the ground that the judgment sought to be reviewed is a judgment dissolving a writ of attachment issued in a pending suit, and is not a final judgment within the meaning of the act of congress creating this court. 1 Supp. Rev. St. (2d Ed.) p. 901. The suit ivas commenced by plaintiff in error on the 1st day of October, 1897, by the issuance of a summons ad respond-endum in an action of assumpsit. On the same day an affidavit was filed for an attachment, on the ground that the debt was actually due, and that the defendant lumber company was about to remove its property out of the state of Florida, and was fraudulently disposing of its property, and an attachment issued. In the course of the proceedings, after much and formal pleadings in the main case, the defendant moved to dissolve the attachment on issues of fact raised upon the formal pleadings, wdiich motion was tried by the court without a jury (a jury having been waived by written stipulation), and the attachment was ordered dissolved, no decision being then reached on the merits nor any final judgment rendered in the case. From the order dissolving the attachment this writ was sued out. In Leitensdorfer v. Webb, 20 How. 176, 185, such a judgment or order is held not to be a final judgment from which a writ of error will lie; and the same case also decides that a rule in the state practice allowing appeals from orders dissolving attachments will not affect the practice in the federal courts. The question involved here seems to have been well considered and well decided in the case of Hamner v. Scott, 19 U. S. App. 639, 8 C. C. A. 655, and 60 Fed. 343, and we think the reasons and authorities there given should control our action. The writ of error is dismissed.

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Bluebook (online)

92 F. 864, 35 C.C.A. 59, 1899 U.S. App. LEXIS 2201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-lumber-co-v-bucki-son-lumber-co-ca5-1899.

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