Opinion
No. 13216.
Argued April 22, 1960.
Decided April 25, 1960.
Francis A. Scanlan, Philadelphia, Pa. (William R. Deasey, Kelly, Deasey Scanlan, Philadelphia, Pa., on the brief), for appellants.
Robert H. Shertz, Philadelphia, Pa. (Shertz, Barnes Shertz, Philadelphia, Pa., on the brief), for appellees.
James J. Leyden, Richard H. Markowitz and Abraham E. Freedman, Philadelphia, Pa. (Levy Anderson, First Deputy City Sol., David Berger, City Sol., Philadelphia, Pa., on the brief), amici curiae.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
We are of the opinion that the order appealed from is a temporary restraining order within the purview of Rule 65(b), Fed.R.Civ.Proc., 28 U.S.C. The court below so designated and intended it and this appears fully from the statement made by the court from the bench which is part of the record before us. Even if the central issue presented by the complaint is nothing more than the maintenance of the status quo pending the disposition of the Section 15 Agreement and the Schedules filed by the defendant, 46 U.S.C.A. § 814, nonetheless we are of the opinion that a United States district court has the jurisdiction to issue a temporary restraining order to permit it to ascertain the operative facts whereby its jurisdiction or lack of it may be ascertained.
While the order did not designate a ten-day limit as required by Rule 65(b) but on the contrary provided that it would remain in force until the application for a preliminary injunction had been heard, we think that this is insufficient to alter its essential character under the circumstances at bar. Had the appeal not been taken on the day following the issuance of the order the terminal date of the order could have been extended as authorized by Rule 65(b) until the 27th of April. Being of the view that the order appealed from is a temporary restraining order, this court is without jurisdiction to entertain the appeal and accordingly the appeal will be dismissed.
The stay order of this court will be vacated.