Westinghouse Air-Brake Co. v. Christensen Engineering Co.

PER CURIAM. This is a motion to dismiss an appeal from an order denying a preliminary injunction (103 Fed. 491), which order was entered July 17, 1900, on the ground that the court has no jurisdiction to entertain such an appeal. By section 7 of the act of March 3,1891, establishing circuit courts of appeals, there was no provision authorizing the taking of an appeal from an order refusing a pre [623] liminary injunction. This section was amended, however, by chapter 96 of the Statutes at Large of 1895, approved February 18, 1895, so as to read as follows: “That whore, upon a hearing in equity in a district court or a circuit court, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused in a case in which an appeal from a final decree may bo 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, continuing, refusing, dissolving or refusing to dissolve an injunction to the circuit court of appeals: provided, that the appeal mast be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court: and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court during the pendency of such appeal: and provided further, that the court below may, in its discretion, require as a condition of the appeal, an additional injunction bond.” Tills section stood as thus amended until June 6, 1900, when, by chapter 803 of the Statutes of 1900, approved June 6, 1900, it was again amended, 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 be granted or continued, or a receiver appointed, by an interlocutor}1' order or decree, in- a cause in which an appeal from a final decree may be taken under the provisions of this act to Ihe circuit court of appeals an appeal may he taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver to the circuit court of appeals: provided, that ihe appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the appellate court; and the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court, or by the appellate court or a judge thereof, during the pendency of such appeal: provided further, that the court below may in its discretion require as a condition of the appeal, an additional bond.” It will be noted that after this second amendment the section remained with no provision authorizing an appeal from an order refusing or dissolving an injunction. The act of 1900 repealed the act of 1895, and the court no longer has jurisdiction to entertain such an appeal. The motion is granted.