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Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913)

Rexford v. Brunswick-Balke-Collender Company

No. 188

Argued March 14, 1913

Decided April 14, 1913

228 U.S. 339


The disqualification under § 3 of the Court of Appeals Act of 1891 arises not only when the judge has tried or heard the whole cause in the court below, but also when he has tried or heard any question therein upon which it is the duty of the circuit court of appeals to pass.

Page 228 U. S. 340

Under § 3 of the Court of Appeals Act of 1891, a judge is not disqualified from sitting in a cause because he had previously passed upon a motion which did not involve a nonwaivable question of jurisdiction if the parties voluntarily and unequivocally eliminate all the questions involved in the motion from consideration by the circuit court of appeals.

The time for filing a petition for removal is not essential to the jurisdiction of the federal court, and may be the subject of waiver or estoppel.

Judges of federal courts should avoid asking counsel if objections to the jurisdiction of the court are withdrawn, as the withdrawal of such objections, to be effectual, must be purely voluntary.

A decree of the Circuit Court adjudging right of possession to one of the parties but appointing a special master to take evidence as to identity of the articles, is not final, but interlocutory only and therefore is not appealable.

The Act of 1891 does not permit an appeal to the circuit court of appeals from a judgment that does not finally dispose of the whole case.

181 F. 462 reversed.

The facts, which involve the construction of the Circuit Court of Appeals Act as to disqualification of judges to sit on the trial of cases and as to what judgments are reviewable by the circuit court of appeals, are stated in the opinion.

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