National Harrow Co. v. Hench

81 F. 926, 1897 U.S. App. LEXIS 2699

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 26, 1897
• Status: Published

Opinion

DALLAS, Circuit Judge

(after stating the facts as above). 1. The petition of the plaintiff, praying allowance of appeal from tlie order of this court of April 10,1897, dismissing the exceptions to the clerk’s taxation of costs, has been argued by the counsel of tlie'respective parties, and fully considered. I have great doubt as to whether an appeal lies from such an order, but think that this doubt should not induce a refusal to allow it. My present action will not prejudice any motion which the defendants may make for dismissal in the court of appeals; but, if the present application were denied, the plaintiff would be compelled to resort to a proceeding involving expense and inconvenience to correct my judgment, if erroneous. Upon compliance by the plaintiff with the requirements of law, its appeal will be allowed.

2. In view of the opposition of counsel for defendants, and of the statement in the affidavit of the president of the corporation plaintiff that the latter “is ready to furnish a bond satisfactory to (.he court,” the surety named in the bond submitted will not be accepted upon the appeal aboye referred to, but another bond, with different surety, may be submitted at chambers, upon 48 hours’ notice to defendants’ counsel.

3. Appellee’s motion for order withdrawing court’s approval of bond for costs on appeal allowed March 26, 1897, has also been argued and considered. The surety was approved about one month ago, and I do not think that the facts now disclosed show that the protection of the defendants require that approval to be withdrawn. Therefore this motion is denied.