Opinion · Court of Appeals for the First Circuit
Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc.
Switz. Cheese Ass’n, Inc. v. E. Horne's Mkt., Inc., 351 F.2d 552 (1st Cir. 1965)
- Type
- Opinion
- Court
- Court of Appeals for the First Circuit
- Jurisdiction
- Federal
- Date
- 1965-10-19
- Topic
- general
How later courts describe this case
- statutes permitting interlocutory appeals are to be strictly construed
Citator
UpLaw has not yet analyzed Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc.. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 9 opinions
SWITZERLAND CHEESE ASS'N v. E. HORNE'S MARKET,351 F.2d 552(1st Cir. 1965)
SWITZERLAND CHEESE ASSOCIATION, Inc., et al., Plaintiffs, Appellants, v.
E. HORNE'S MARKET, INC., Defendant, Appellee.
No. 6523.
United States Court of Appeals, First Circuit.
Submitted October 6, 1965.
Decided October 19, 1965.
Page 553
Harold E. Cole, Boston, Mass., on brief for appellee.
Before ALDRICH, Chief Judge, HAMLIN, Senior Circuit Judge,fn*and McENTEE, Circuit Judge.
The first question is that of our jurisdiction. No determination was made, or sought for, warranting an interlocutory appeal under28 U.S.C. § 1292(b). Plaintiffs assert jurisdiction under section 1292(a)(1), permitting appeals from "[i]nterlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions * * *." We do not find this section appropriate.
Plaintiffs concede that they did not ask for, and made no showing in the district court warranting, an interlocutory injunction, and that all they sought, and presently seek, is a permanent injunction. It is equally clear that the district court did not finally deny a permanent injunction, but merely held that in the present posture of the case there is an issue of fact making a summary judgment inappropriate.
It must be apparent that the denial of an interlocutory injunction is not the same as an interlocutory denial of a permanent injunction. By hypothesis the need, or alleged need for an immediate appeal is urgent in the former case. Contrariwise, a final appeal from the interlocutory denial of a permanent injunction may never be needed; the court, when the evidence is taken, may grant, rather than deny, relief.
Because of the general policy against piecemeal appeals, statutes permitting interlocutory appeals are to be construed with some strictness. On this basis, whatever may be the exact letter, the spirit of section 1292(a)(1) is against plaintiff's position. In this we agree with cases such as Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 1950,181 F.2d 160, and Hook v. Hook Ackerman, Inc., 3 Cir., 1954,213 F.2d 122. See also Division 689, Amalgamated Ass'n of St. Elec. Ry. and Motor Coach Emp., etc. v. Capital Transit Co., 1955, 97 U.S.App.D.C. 4,227 F.2d 19, and Clark, C.J., dissenting, in United States v. New York, N.H. H. RR., 2 Cir., 1960,276 F.2d 525, at 549, 552, cert. den. Tri-Continental Financial Corp. v. United States,362 U.S. 961,80 S.Ct. 877,4 L.Ed.2d 876and Tri-Continental Financial Corp. v. Glenmore,362 U.S. 964,80 S.Ct. 877,4 L.Ed.2d 878.
Plaintiffs cite Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 2 Cir., 1960,280 F.2d 800. It is true that in that case the court upheld plaintiffs' position. We note, however, that the writer expressed his personal reluctance, but felt boundPage 554by the circuit's prior decisions. We are under no such disability. Furthermore, we think that the additional opportunity afforded by section 1292(b) for interlocutory appeals under controlled conditions enacted since the original decisions in the Second Circuit makes strict construction of the other sections all the more desirable.
Appeal dismissed for want of jurisdiction.Page 596
- Sitting by designation. ↩