Ayer-Kempton Corp. v. Ayer-O'Donnell Mfg. Co.

Second Circuit

Ayer-Kempton Corp. v. Ayer-O'Donnell Mfg. Co.

298 F. 748, 1924 U.S. App. LEXIS 2711

CourtCourt of Appeals for the Second Circuit

DecidedApril 15, 1924

DocketNo. 305

StatusPublished

This text of 298 F. 748 (Ayer-Kempton Corp. v. Ayer-O'Donnell Mfg. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ayer-Kempton Corp. v. Ayer-O'Donnell Mfg. Co., 298 F. 748, 1924 U.S. App. LEXIS 2711 (2d Cir. 1924).

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Opinion

PER CURIAM.

Having directed reversal of decree in open court, this memorandum is filed for the record.

The decree appealed from finally dismisses the bill “for failure to make proper service.” In any sense of that word there is no fault to be found with the service. The real question presented by the record, and perhaps intended to be decided, is not one of service, but of jurisdiction, viz.: Did the District Court, as a court of the United States, possess power to grant the relief prayed for in favor of plaintiffs and against defendants, or any of them? But this question we have no power to review, if jurisdiction be denied below; and, if we passed the case on to the Supreme Court, that tribunal would find in the record a decree which merely erroneously decided a point of practice.

Therefore let the decree be reversed, without costs, and the cause remanded, with directions to grant a rehearing, either upon the findings already made by Goddard, J., or upon new evidence, as the lower court may prefer. Before decision is'again reached, it would be well to consider The Carlo Poma, 255 U. S. 219, 41 Sup. Ct. 309, 65 L. Ed. 594, and cases there cited.

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PER CURIAM.

Having directed reversal of decree in open court, this memorandum is filed for the record.

The decree appealed from finally dismisses the bill “for failure to make proper service.” In any sense of that word there is no fault to be found with the service. The real question presented by the record, and perhaps intended to be decided, is not one of service, but of jurisdiction, viz.: Did the District Court, as a court of the United States, possess power to grant the relief prayed for in favor of plaintiffs and against defendants, or any of them? But this question we have no power to review, if jurisdiction be denied below; and, if we passed the case on to the Supreme Court, that tribunal would find in the record a decree which merely erroneously decided a point of practice.

Therefore let the decree be reversed, without costs, and the cause remanded, with directions to grant a rehearing, either upon the findings already made by Goddard, J., or upon new evidence, as the lower court may prefer. Before decision is'again reached, it would be well to consider The Carlo Poma, 255 U. S. 219, 41 Sup. Ct. 309, 65 L. Ed. 594, and cases there cited.

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298 F. 748, 1924 U.S. App. LEXIS 2711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayer-kempton-corp-v-ayer-odonnell-mfg-co-ca2-1924.

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