Appellant took an appeal from this order in the manner and form provided for appeals from a criminal judgment by giving notice of appeal (May 2, 1938) accompanied by a statement of the grounds of appeal. On May 2, 1938, he served and lodged with the clerk a proposed bill of exceptions which was settled and allowed by the District Court on May 6, 1938. Assignment of errors was also served and filed. (See Rules of Practice and Procedure after plea of guilty, verdict or finding of guilt in criminal cases, etc., note 723(a), T. 28 U.S.C.A.)

At the outset, we must inquire as to our jurisdiction of the appeal. Mitchell v. Maurer, 293 U.S. 237, 55 S. Ct. 162, 79 L. Ed. 338; Highway Construction Co. v. McClelland, 14 F. 2d. 406; Nixom v. Michaels, 38 F. 2d 420; Cory Bros. & Co. v. U.S., 47 F. 2d. 607; U.S. v. King & Howe, 78 F. 2d. 693; Osborn v. U.S., 50 F. 2d. 712; In re Perlman, 68 F. 2d. 729.

If the order attempted to be appealed from is civil in its nature, the act of February 13, 1925, ch. 229, 43 Stat. 936, 940, 28 U.S.C.A. § 230, requires a petition for, and allowance of, an appeal. Alaska Packers Assn. v. Pillsbury, 301 U.S. 174. If criminal in its nature, appeal under the Criminal Appeals Rules, supra, was proper and necessary. Wilson v. Byron Jackson Co., 93 F. 2d. 577. ***

In the case at bar, it is clear that the proceedings as well as the form of the order were civil in their nature.

The proceedings and order being civil in their nature, the next question is whether or not appellant has complied with 23 U.S.C.A. § 230, supra, providing that "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 there for be duly made within three months after the entry of such judgment or decree." In Alaska Packers Assn. v. Pillsbury, 301 U.S. 174, supra, it was held that the giving of a notice of appeal required by our admiralty rule was insufficient to give jurisdiction of the appeal. The Court stated:

"The reasons for requiring that an appeal be duly applied for
and allowed are that there may be some assurance that the suit is
one in which there may be a review in the circuit court of appeals;
that the decree is of such finality or character that it may be
reexamined on appeal; and that appropriate security for costs may
be taken where the appellant is not by law exempted from giving
such security. In this way improvident and unauthorized appeals
are prevented. While an appeal in a proper case is matter of
right the question whether the case is a proper one under the law
regulating appeals is not left to the appellant, but is to be ex-
amined and primarily determined by the court or judge to whom the
application is to be made."

This court has been liberal in regard to what constitutes or is equivalent to a petition for and an allowance of an appeal by the court or

judge. In Crescent Wharf & Warehouse Co. v. Pillsbury, 93 F. 2d. 761, we held that where not only a notice of appeal was served and filed but a bond for costs of appeal was presented to the judge and his approval thereof obtained, this constituted in effect an allowance of the appeal by the judge. In the Diamond Cement case (Partos v. Pacific Coast S. S. Co., 95 F. 2d. 738) we held that where a written stipulation between parties providing what the apostles on appeal should contain was filed with the clerk of the district court and on the same day the district court entered an order transmitting and certifying certain exhibits to the Circuit Court of Appeals and, where subsequently a stipulation was filed providing that supplemental apostles might be filed, including a transcript of an oral decision of the district court which upon submission to the district court was corrected and initialed by it, such action constituted a sufficient application for and allowance of an appeal by the district court.

These decisions are inapplicable to the case at bar. Here, the only actions of the trial judge or court subsequent to the judgment in question heroin was the settling of the bill of exceptions and the denial of bail. There was nothing equivalent to the application for and allowance of an appeal. See Share v. U.S., 50 F. 2d. 669; Von Holt v. Carter, 56 F. 2d. 61; U.S. v. New National Coal and Mining Co., 72 F. 2d. 168; Koss v. White, 32 F. 2d. 750. Indeed, appellant does not contend that there was anything equivalent to an application for and allowance of an appeal pursuant to 28 U.S.C.A. § 230, supra. His contention is that the proceedings and order were for punishment of criminal contempt.

The appeal is dismissed.

HANEY, C.J., dissenting.

I dissent.

In the instant case, the majority opinion holds that the appeal should be dismissed because appellant did not comply with 28 U.S.C.. § 230, which provides that no "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.' That statute is treated as being in existence and as the controlling rule.

Prior to our hearing of the cause, there became effective the Federal Rules of Civil Procedure, which provide in Rule 73 (a) that "a party may appeal from a judgment by filing with the district court a notice of appeal." It thus appears that the two rules regarding the procedure for taking an appeal are inconsistent. The question as to whether or not appellant used the proper procedure is now presented. If both rules are effective, we have a choice as to which rule we will apply.

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.0.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 effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, 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 appeals is reviewing the action of the trial judge under the old rules, it will test his decision by those rules. And the rule that provides for exercising discretion as to whether the old 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.

the same Institute Chairman Mitchell previously said that "officially nobody but the justices of the Supreme Court know what these rules mean" and "Furthermore, 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", "appellate court", "circuit court of