Opinion
No. 7858.
March 7, 1928.
Appeal from the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge.
Suit in equity by W.H. Bremner, receiver, against D.H. Thomas, receiver. Decree for defendant, and complainant appeals. Appeal dismissed.
James A. Devitt, of Oskaloosa, Iowa (M.M. Joyce and C.W. Wright, both of Minneapolis, Minn., and John C. Eichhorn, of Oskaloosa, Iowa, on the brief), for appellant.
J.H. Patton, of Grinnell, Iowa, for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.
This is a plenary action by the receiver of the Minneapolis St. Louis Railroad Company against the receiver of the Merchants' National Bank of Grinnell, Iowa, having as its object the impounding of certain moneys in the hands of the latter on the theory that such are held by him as trustee ex maleficio. The trial court sustained a motion to dismiss the bill upon the merits. From such order of dismissal this appeal is taken.
It is the duty of federal appellate courts, in every case, to examine its jurisdiction, whether such point has been raised or not. Smyth v. Asphalt Belt Ry., 267 U.S. 326, 327, 45 S. Ct. 242, 69 L. Ed. 629; Smith v. Apple, 264 U.S. 274, 275, 44 S. Ct. 311, 68 L. Ed. 678; Stevirmac Oil Gas Co. v. Dittman, 245 U.S. 210, 214, 38 S. Ct. 116, 62 L. Ed. 248; M., C. L.M. Ry. Co. v. Swan, 111 U.S. 379, 382; Equitable Life Assur. Soc. v. Rayl, 16 F.2d 68 (this court); Elliott v. Empire Natural Gas Co., 4 F.2d 493, 494 (this court); Cleveland Cliffs Iron Co. v. Village of Kinney, 266 F. 888, 889 (this court); C.C. Taft Co. v. Century Savings Bank, 141 F. 369, 371 (this court). Such examination in this case reveals that the order from which the appeal was taken was entered December 2, 1926; that the petition for appeal and the assignment of errors was filed April 4, 1927, and the appeal allowed April 11, 1927. As the petition for appeal and assignment of errors were filed more than three months after the entry of the order from which the appeal is taken (Act Feb. 13, 1925, 43 Stat. 936, USCA tit. 28, § 225 [28 USCA § 230]), and, as this matter is jurisdictional, the appeal must be dismissed for want of jurisdiction because not taken within the time required by law.