Cory Bros. & Co. v. United States

Second Circuit

Cory Bros. & Co. v. United States

47 F.2d 607, 1931 U.S. App. LEXIS 3528

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 16, 1931

Docket210

StatusPublished

Cited by15 cases

This text of 47 F.2d 607 (Cory Bros. & Co. v. United States) 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

Cory Bros. & Co. v. United States, 47 F.2d 607, 1931 U.S. App. LEXIS 3528 (2d Cir. 1931).

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Opinion

PER CURIAM.

It is impossible to consider the order appealed from a final order. For aught that appears, the libelant may have amended its libel, and may, should the amended libel be dismissed, hereafter appeal from that order. A case may not he brought up in fragments (Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616), and this possibility of a later appeal from a dismissal of an amended libel emphasizes the lack of finality of the order now before us. It does not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after expiration of the time allowed for amendment is required to make a final disposition of the cause. Such orders are not appealable. Clark v. Kansas City, 172 U. S. 334, 19 S. Ct. 207, 43 L. Ed. 467; City and County of San Francisco v. McLaughlin, 9 F.(2d) 390 (C. C. A. 9); Western Electric Co. v. Pacent Reproducer Corp. (C. C. A.) 37 F. (2d) 14. As shown by these authorities and many others which might be cited, it is the duty of an appellate court to question its own jurisdiction, though the parties do not.

Accordingly, the appeal must be dismissed, and it is so ordered.

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PER CURIAM.

It is impossible to consider the order appealed from a final order. For aught that appears, the libelant may have amended its libel, and may, should the amended libel be dismissed, hereafter appeal from that order. A case may not he brought up in fragments (Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616), and this possibility of a later appeal from a dismissal of an amended libel emphasizes the lack of finality of the order now before us. It does not differ from an order sustaining a demurrer with leave to amend; another order of absolute dismissal after expiration of the time allowed for amendment is required to make a final disposition of the cause. Such orders are not appealable. Clark v. Kansas City, 172 U. S. 334, 19 S. Ct. 207, 43 L. Ed. 467; City and County of San Francisco v. McLaughlin, 9 F.(2d) 390 (C. C. A. 9); Western Electric Co. v. Pacent Reproducer Corp. (C. C. A.) 37 F. (2d) 14. As shown by these authorities and many others which might be cited, it is the duty of an appellate court to question its own jurisdiction, though the parties do not.

Accordingly, the appeal must be dismissed, and it is so ordered.

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Bluebook (online)

47 F.2d 607, 1931 U.S. App. LEXIS 3528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cory-bros-co-v-united-states-ca2-1931.

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