Omaha & S. W. R. Co. v. Chicago, St. P., M. & O. Ry. Co.

106 F. 586, 45 C.C.A. 474, 1901 U.S. App. LEXIS 3596

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 23, 1901
• Docket: No. 1,502
• Status: Published

Opinion

SANBORN, Circuit Judge.

This is a motion to dismiss an appeal from an order refusing a preliniinary injunction, which was made on ■October 1⅛-1900.: ; By the -sevehth: section of -the 'judiciary act of 1891, (Touting the circuit courts of appeals, an appeal was allowed to those courts from any order of the circuit court granting or continuing an injunction. 26 Btat, 828. By the act of February 18, 1895 (2 Hupp. Rev. St. 376), that section was so amended that an appeal from the circuit courts to those courts was permitted to be taken from any '•interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve an injunction.” By the act of congress approved June 6,1900 (31 Btat. 1899-1900, p. 666), the seventh section of the act of 1891 was amended so as to read as follows:

“See. 7. That where, upon a hearing in equity, in a district court or in a circuit court, or by a judge thereof in vacation, an injunction shall he granted or continued, or a receiver appointed, by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals, an appeal may be taken from such interlocutory order or decree granting or continuing sucli injunction, or appointing such receiver, to the circuit court of appeals.”

It will be observed that the amendment of 1900 omits from the section in question all that portion of it which was inserted therein by the amendment of 1895 relative to the appeal from an interlocutory order or decree “refusing, dissolving, or refusing tO' dissolve an injunction.” The inevitable result is that since the passage of the latter act this court has no jurisdiction of any appeal from an order refusing, dissolving, or refusing to dissolve, an injunction, and, as the order from which this appeal was taken refused an injunction, it was not appealable, and the motion to dismiss the appeal must be granted. It is so ordered. Wire Co. v. Boyce (C. C. A.) 104 Fed. 172; Westinghouse Air-Brake Co. v. Christensen Engineering Co. (C. C. A.) 104 Fed. 622.