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 defcat 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. |