The opinion
DISSENTING OPINION
Graham, Judge:
I am satisfied with the conclusion reached by the majority that the paper filed, claimed to be by the Assistant Attorney General, wras not a sufficient application for review of the decision of Judge Kincheloe, and that the court below should have so held. There is, however, one matter in which I think the majority opinion does not meet my views.
I am convinced that the affirmance of the judgment of the court below is in error for this reason: The court had jurisdiction of the matter, for the purpose of determining whether the paper filed by the Assistant Attorney General was a sufficient application for review, and consequently whether an appeal had been perfected. It had a right, and it was the duty of the court, to determine that matter. It held that it did not have jurisdiction, because no application for review had been filed, and thereupon ordered “that the papers be, and the same are hereby returned to the collector at the port of St. Louis, without action by this court.” This, in my opinion, was not a proper judgment order. The case had come to the court from the court of Judge Kincheloe and should have gone back to the collector by the same method. In other words, the papers should have been transmitted to the collector by Judge Kincheloe’s court.
The judgment of the United States Customs Court should have been that the appeal was dismissed. This is in harmony with the practice in similar cases. Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693, 701 ; Allison v. United States, 11 Ct. Cust. Appls. 297 , T. D. 39126.
In my opinion the judgment below should be reversed and the cause remanded for the rendition of a proper order of dismissal.