In George v. Victor Talking Machine Co., 293 U.S. 377, 55 S. Ct. 229, 79 L. Ed. ___, the Supreme Court held that this court was without jurisdiction to entertain an appeal which was not taken within the time prescribed by law.Summary of this case from Walters v. Baltimore O.R. Co.
Argued December 5, 1934. Decided December 17, 1934.
1. A decree of the District Court finding infringement of the common law right of property in a song, granting an injunction, and appointing a master to take and state an account of profits and report to the court, with the usual provisions for exceptions to such report, is interlocutory. P. 378. 2. An appeal from such a decree, taken after the time limited by Jud. Code § 129, 28 U.S.C. § 227, has expired, is beyond the jurisdiction of the Circuit Court of Appeals. P. 379. 69 F.2d 871, reversed.
Mr. Minitree Jones Fulton, with whom Messrs. Robert L. Nase and Q.C. Davis, Jr., were on the brief, for petitioner.
Mr. Louis Levinson, with whom Messrs. Robert P. Myers, Lawrence B. Morris, I.E. Lambert, and Isaac D. Levy were on the brief, for respondent.
Review was limited to the question of the jurisdiction of the Circuit Court of Appeals. The suit was brought for the infringement of the common law right of property in a song, and the bill sought an accounting of profits made by the defendant. The District Court sustained the plaintiff's right as author and found infringement. Decree was entered granting an injunction and appointing a special master to take and state an account of profits and to report to the court, with the usual provisions for exceptions to the report. The decree was interlocutory. The Palmyra, 10 Wheat. 502; Perkins v. Fourniquet, 6 How. 206, 208, 209; Craighead v. Wilson, 18 How. 199, 202 (explaining Forgay v. Conrad, 6 How. 201); Beebe v. Russell, 19 How. 283, 287; Humiston v. Stainthorp, 2 Wall. 106; Keystone Manganese Co. v. Martin, 132 U.S. 91, 93, 97; McGourkey v. Toledo Ohio Central Ry. Co., 146 U.S. 536, 547; Guarantee Co. v. Mechanics' Savings Bank Trust Co., 173 U.S. 582, 586; Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 89. The decree was entered on March 31, 1933, and the appeal to the Circuit Court of Appeals was not taken until May 18, 1933. The Circuit Court of Appeals entertained the appeal and reversed the decree of the District Court. As the appeal was not taken within the time prescribed by law, the Circuit Court of Appeals was without jurisdiction. Jud. Code, § 129, 28 U.S.C. § 227. The decree of the Circuit Court of Appeals is reversed and the cause is remanded to that court with directions to dismiss the appeal.