Barber Asphalt Paving Co. v. Forty-Second St., M. & St. N. Ave. Ry. Co.

Second Circuit

Barber Asphalt Paving Co. v. Forty-Second St., M. & St. N. Ave. Ry. Co.

172 F. 1021, 96 C.C.A. 664, 1909 U.S. App. LEXIS 5046

CourtCourt of Appeals for the Second Circuit

DecidedAugust 2, 1909

DocketNo. 297

StatusPublished

This text of 172 F. 1021 (Barber Asphalt Paving Co. v. Forty-Second St., M. & St. N. Ave. Ry. 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.

Bluebook

Barber Asphalt Paving Co. v. Forty-Second St., M. & St. N. Ave. Ry. Co., 172 F. 1021, 96 C.C.A. 664, 1909 U.S. App. LEXIS 5046 (2d Cir. 1909).

Pincite

Opinion

PER CURIAM.

Judge Lacomhe's order (170 Fed. 1022) is in no sense final, even assuming that a decree finally determining this proceeding is itself a final decree in the suit from which an appeal can be taken. The reference which he has directed to the master is not a mere ministerial act in execution of a final order. It is a substantial part of the litigation, upon the determination of which the rights of the parties wholly depend. Although no parties to the record have raised this point, the brief of others interested does raise It, and in any case no jurisdiction can be conferred by consent, for the proceedings are non eoram judice. We must therefore dismiss the appeal, and the parties must prosecute the reference before the special master.

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PER CURIAM.

Judge Lacomhe's order (170 Fed. 1022) is in no sense final, even assuming that a decree finally determining this proceeding is itself a final decree in the suit from which an appeal can be taken. The reference which he has directed to the master is not a mere ministerial act in execution of a final order. It is a substantial part of the litigation, upon the determination of which the rights of the parties wholly depend. Although no parties to the record have raised this point, the brief of others interested does raise It, and in any case no jurisdiction can be conferred by consent, for the proceedings are non eoram judice. We must therefore dismiss the appeal, and the parties must prosecute the reference before the special master.

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Bluebook (online)

172 F. 1021, 96 C.C.A. 664, 1909 U.S. App. LEXIS 5046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-asphalt-paving-co-v-forty-second-st-m-st-n-ave-ry-co-ca2-1909.