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It might be argued that the old rule providing for allowance of the appeal is no longer in existence because of the statute under which the Federal Rules of Civil Procedure were enacted, which provides that such rules "shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect.". Thus, since the old rule is in conflict with rule 73 (a), it might be argued that the old rule, as expressed in 28 U.S.C.A, § 230 was repealed as of the effective date of the Federal Rules of Civil Procedure. However, for the purposes of the present discussion, I assume that the force of the new rules is greater than that of the statute under which they were promulgated, and use as a premise that both 25 U.S.O.A. $ 230, and the Federal Rules of Civil Procedure are in existence as seems to be the intent of Rule 86. See also: Proceedings of The American Bar Association Institute, p. 188.

The rule last mentioned provides that the Federal Rules of Civil Procedure "govern all proceedings in actions brought after they take offect and also all further proceedings in actions then pending, except to the extent that in the opinicn of the court their application in a particular action pending when the rules take effect would not be feasible or would work in justice, in which event the former procedure applies."

I think it is clear that the instant cause was pending on September 16, 1938. See: Proceedings of The American Bar Association Institute, pp. 342, 380, 383. Likewise it is clear, that the hearing and determination are further proceedings, and therefore, the rules under Rule 86 govern, unless (1) that rule is applicable only to the district courts, or (2) the application of the Federal Rules of Civil Procedure "would not be feasible or would work injustice."

Regarding Rule 86, Chairman Mitchell of the Advisory Committee, in answering a question, said:

"I think it is clear that that case was tried in the district court under the old rule, and when the circuit court of appea's is reviewing the action of the trial judge under the old rules, ut will test his decision by those rules. And the rule that provides for exercising discretion as to whether the olå or new rules shall be applied to pending cases, has nothing to do with the circuit court of Appeals. It relates to the powers of the district court."

Proceedings of The American Bar Association Institute, p. 188. However at the same Institute Chairman Mitchell previously said that "officially nobody but the justices of the Supreme Court know what these rules mean" and "Furthertiore, I think it was Lord Bacon who said that a person who drafted. a document was least qualified to interpret it, because he always had in mind what he intended to say rather than what he actually said."

Was Rule 86. intended to apply only to the district courts? The particular word used in the entire sentence is "court". The rules, however, specifically mention "district court", "appollate court", "circuit court of

appeals", "Supreme Court of the United States" and "court". While it is true that "appellate court" is used in most instances, and while in most cases where "court" is used it can be seen in those instances that the district court is meant, in Rules 75 (k) and (1) the word "court" is used, and the appellate court is meant. I, therefore, believe that it should not be said that because of the habit of referring to the district court as the "court" whenever the word "court" is used, only the district court is meant.

The only other reason for so holding is that all the rules are applicable to the district court only. The Federal Rules of Civil Procedure prescribe a course of action to be taken by: (1) the parties; (2) the district court; and (3) the appellate court. Therefore, the rules are applicable not only to the district courts, but also to the appellate courts.

There is no suggestion here that application of the rules "would not be feasible or would work injustice." In fact there is no sound reason for depriving the appellant of a decision on the merits here. Appellee has not been misled by appellant's method of appeal, or changed its position. It is simply attempting to take advantage of a highly technical objection patently lacking substance. The rules were promulgated to simplify procedure, and to abolish many technicalities which could be used to defeat a decision on the merits. The majority opinion seems to me to lose sight of the purpose of the rules and in effect accomplishes the very thing the rules seek to abolish. I think that in determining whether or not we have jurisdiction, the action taken by appellant should be tested by the rule now in existence, as specified in Rule 73 (a) of the Federal Rules of Civil Procedure.

While application herein of the principle laid down in Tighe v. Maryland Casualty Company (CCA 9), November 7, 1938, might lead to a different result, that case considered a different rule than the one involved here, and should be limited to its facts, So limited, it is not here controlling.

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