1. Under § 8(c) of the Act of February 13, 1925, which provides
that no appeal to a Circuit Court of Appeals shall be allowed
"unless application therefor be duly made within three months," and
which is applicable to admiralty proceedings, the District Court
has discretion, where within the three months' period a notice of
appeal is filed in the office of the clerk of the court and the
intention to appeal is apparent, to treat the notice of appeal as
an application for allowance of an appeal, and the action of the
District Court in so treating a notice of appeal as an application
for allowance of an appeal in this case was not an abuse of
discretion. P.
323 U. S.
336.
2. Where the appeal statute merely requires that an application
for appeal be made within the prescribed time, the allowance may be
made subsequently. P.
323 U. S.
337.
141 F.2d 652 affirmed.
Certiorari,
post, p. 692, to review the reversal of a
decree dismissing a libel in admiralty.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is an admiralty case here on certiorari from the Circuit
Court of Appeals for the Fifth Circuit. A single question is
presented. Petitioner claims that the appeal from the District
Court to the Circuit Court of Appeals
Page 323 U. S. 335
was not properly taken. Since the Rules of Civil Procedure do
not apply to proceedings in admiralty, [
Footnote 1] the question is whether the requirements of §
8(c) of the Act of February 13, 1925, 43 Stat. 936, 940, 28 U.S.C.
§ 230, were met. That section provides:
"No writ of error or appeal intended to bring any judgment or
decree before a circuit court of appeals for review shall be
allowed unless application therefor be duly made within three
months after the entry of such judgment or decree."
A final decree dismissing the libel was entered on April 20,
1943. On July 6, 1943, the libellant issued a notice of appeal,
served it on respondent's proctors, and obtained their acceptance.
It filed the notice of appeal in the office of the clerk of the
District Court on July 12, 1943. Nothing else was done within the
three months' period except to consult the district judge on the
amount of the appeal bond. The assignment of errors and the appeal
bond were filed July 21st. A formal petition for appeal was filed
on August 12th and allowed the 13th. On August 30th, the district
judge entered an order which treated the notice of appeal filed
July 12th as an application for allowance of the appeal and granted
it. That order recited that the libellant had assumed that the
clerk would present the notice of appeal to the judge for an
allowance, that the judge knew within the three months' period of
libellant's intention to appeal and would have granted it if he had
been so requested, though he assumed a formal allowance was not
necessary. The Circuit Court of Appeals held that the notice of
appeal filed July 12th was sufficient as an application for an
appeal, and that the failure to allow it within the three months'
period was not fatal. 141 F.2d 652.
Page 323 U. S. 336
We agree with the Circuit Court of Appeals. Application for an
allowance of the appeal was, of course, necessary.
Alaska
Packers Assn. v. Pillsbury, 301 U. S. 174;
Wells v. United States, 318 U. S. 257,
318 U. S. 260.
But the law does not prescribe the form in which an application for
allowance of an appeal must be cast. We cannot say that the trial
judge abused his discretion in treating the notice of appeal as an
application for an allowance. It was properly filed with the clerk
of the District Court. [
Footnote
2]
Steffler v. United States, 319 U. S.
38,
319 U. S. 40.
The intention to appeal was apparent. Only a formal request was
lacking. In other instances, where the scope of review was not
affected, comparable irregularities in perfecting an appeal have
been disregarded in the interests of justice.
Taylor v.
Voss, 271 U. S. 176,
271 U. S. 182,
and cases cited. We do not suggest that the mere filing of a notice
of appeal must be taken as adequate. Desirable practice indicates
that explicit, instead of implied, application for an allowance
should be made in order to avoid litigation. We hold, however, that
there is discretion to treat the notice of appeal as such an
application.
Alaska Packers Assn. v. Pillsbury, supra, does not
require a different result. In that case, an appeal was sought to
be perfected simply by filing a notice of appeal. But it did not
appear that an appeal was ever allowed. The Court held that an
appeal must be applied for and allowed.
Page 323 U. S. 337
It stressed the importance of the allowance in screening out
improper or premature appeals and in making certain that security
for costs was provided in appropriate cases. 301 U.S. at
301 U. S. 177.
We adhere to that decision. Under this statute, an allowance of an
appeal is essential.
McCrone v. United States,
307 U. S. 61. We
only point out that the
Alaska Packers case did not
involve the question presented here --
i.e., whether a
notice of appeal may suffice as an application for an allowance.
Nor did it involve the further question whether the allowance must
be made within the three months' period. We held in
Reconstruction Finance Corp. v. Prudence Group,
311 U. S. 579,
that a requirement of the Bankruptcy Act that certain appeals "be
taken to and allowed by the circuit court of appeals" within a
prescribed time was satisfied where the application was timely, but
the allowance of the appeal came later. Otherwise, "the existence
of the right to appeal would be subject to contingencies which no
degree of diligence by an appellant could control." 311 U.S. at
311 U. S. 582.
That result is even more plainly indicated under the present
statute.
The Tietjen & Lang No. 2, 143 F.2d 711. For
where, as here, a statute merely requires that an application for
an appeal be made within a prescribed time, the allowance may be
granted subsequently.
Cardona v. Quinones, 240 U. S.
83.
Affirmed.
[
Footnote 1]
Rule 81(a)(1).
[
Footnote 2]
We therefore have a different question from that presented in
Reconstruction Finance Corp. v. Prudence Group,
311 U. S. 579,
311 U. S. 582,
where a notice of appeal was filed in the District Court, but the
appeal had to be allowed by the Circuit Court of Appeals.
Here, the appeal could be allowed either by the trial judge or
by a judge of the Circuit Court of Appeals.
Alaska Packers
Assn. v. Pillsbury, supra; McCrone v. United States,
307 U. S. 61,
307 U. S. 65;
The Tietjen & Lang No. 2, 143 F.2d 711, 712; Judicial
Code, § 132, 28 U.S.C. § 228.