# Brief for the United States — McCrone v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0154%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1939 - **Citation:** 307 U.S. 61 ## Text . ~ - sa ‘ > RE ™ “ ° “ J s ‘ + . o cad + a a ; o . “. . ‘ > . i \ * ‘ ‘ ¥ . ‘ £ - ri } "e, | ae Pa Opinions below - : - - - --- -- Eandilnn ith bune habe ee aie sneacnae Jurisdiction - - - - - RE eee aay EE rE Ee Pe Sener” Ciara aes Questions presented __ ~. ____- Sea wai hed wade eaicineean ra Statutes involved. --............--- dhe esl aensas manasa Summary of argument..---_.-_-.- oc haameca ars wie estas eileen Argument: ' |. The proceeding and order were for civil contempt and the notice of appeal under the Criminal Appeals Rules was therefore ineffective___.._-...-:-------- 11 II. The Federal Rules of Civil Procedure are not sential to cure the ineffective appeal; and in any event there is no need for further proceedings in the Court of SI k buen ke iden dae ben eee et abeaabn sea 23 Conclusion --___ . --. maka sha aid aoa alae logwahsbaccnndaeniwe 26 ats ocheans chek encnp kaGhee se aegn en inenensadase 27. CITATION _ Cases: ee ne . ' Abrams v. United States, 64 F. (2d) 22..-.....---------. 25 Alaska Packers Assn. v. Pillsbury, 301 U. 8. 174. __~- cau 22 Bessetée v. W. B. Conkey Co., 194 U. 8. 324___.____.._--- 15 - ' Bolich, Internal Revenue Agent v. Rubel, 67 F. (2d) 894_. 11,19 Bowen v. Johnston, No. 359, present Term, decided Jan- Re cies Zeke eh cee eedinwenwencin hae te 24 . Brownson v. United States, Se es Ce As cb dncncaheount 11, 19 Christensen Engineering Co., Matter of, 194 U.S. 458. -_- 14 Department of Health of the State of New Jersey v. Borough ee ee eee - 22 ? E. Ingraham Co. v. Germanow; 4 F. (2d) 1002_________- en 21 Enoch Morgan's Sons Co.\v. Gibson, 122 Fed. 420.-...-.:- 21 Federal Trade Commission v. A. McLean &-Son, 94 F. (2d) 802. 10, 20 ” Fox v. Capital Co., 299 U. 8. 105.._.......-..-4.--2 2222 14 Gompers v. Bucks ‘Stone and Range Co., 221 U. 8. 418___-- 15,48 Gompers v. United States, 233 U. S. 604_-_-__- icles Seatecon 13 Grossman, Ex parte, 267: U. 8. 87 .. ..----«------------. 15 es OO OE Os SUE WE rica cdnccaccenchnendascos kag Helvering v. Mitchell, 303 U. 8. 391_..-.-...------------ 20 -_ Internal Revenue Agent v. Sullivan, 287 Fed. 138 _. --.--- 18 International Corporation Co., In re, 5 F. Supp. 608_.----~- 19 Interstate Commerce Commtzsion v. Baird, 194-U. S: 25. _-- 11 I ntersiate Commerce Commission v. Brimson. 154 U. 8. 447-.. 11, 19 137113—39——1 q@) * eonwne=@3 II Cases—Continued. Page Jones v. Securities and Exchange Site: 298 U.S. 1__ 11 Lamb v. Cramer, 285 U. 8. 217...:.....------- 14, 16, a 19, 21 Leman-v. Kreniler-Arnold Co., 284 U. 8S. 448____._______- 19 I Gi, Bs Se SEE is iho ke ceded nncnscnes 22 McCann v. New York Stock Exchange, 80 F. (2d) 211___-- 21 Mason v. United States, 244 U. 8. 362_______________-_-- 25 Merchants Stock Co., Petitioner, In re, 223 & teen 14 “* Michaelson v. United Se Oe TR cence cee ninnne 15, 21 Miles v. United Founders’ Corp., 5 F. Supp. 413. -_~----- 19 | Miller v. United States, 95 F. (2d) 402..........-- SpSreR. 25 - Nevitt, In re, 117 Fed. 448__.....2.. ...--------------- 15 * Oriel v. Russell, 278 U. 8. 36B..............-..- ee Denes 15 Penge ©. Ream, UEl GB. Agee.6.0..2........-44......-. 22 _- vaste, G7 Mi, ¥. 306'.....-......--.....0s...-2 ef) ettecatp hecesdisiy, eraie Ices co Moers Oe ae 22 Tighe.v. Maryland Casualty .Co., 99 F. (2d) 727____---_-- ' 24 Union Tool Co. v. Witson, 259 U. Th Pl gnshsantnatnsnns 14, 21 United States v. Bittner, 11 F. (2d) 93__..._--.-------_-- — 21 * United States v. First National Bank,.295 Fed. 142, affirmed, SN ts ak Aniki cn eam ek en mage aca a 19 United States « Flegenheimer, 82 F. ND bid iat an ent 25 United States v. Goldman, 277 U. 8. 229_...-...--------- 12, 21 Utah Fuel Co. v. National Bituminous Coal Commission, . No. 528, present Term, decided January 30, 1939_---__- 24 Wilson v. Byron Jackson Company, 93 F, (2d) 577_.---- has 12 Witmer v. District Court of Polk County, 155 Iowa 244____ ' @ Worden v. Searls, 121 U.S. 14..." Ss daishiastec ca leh edith aiasbaigrisn ame 21 Statutes: ; Interstate Commerce Act of 1887, c. 104, 24 Stat. 379__- 11 Clayton Act,.¢. 385, 36 Gtat. 761..........<.....-....... ' 13 Act of February 13, 1925, c. 229, 44 Stat. 936, Sec. 8 (c), as amended (U. 8. C., Title 28, Sec. 230) ____. conaies 27 Judicial Code, Sec. 268 (U. S. C., Title 28, Sec. 385) ..___- 27 ‘Revenue Act of 193%, c. 852, “ Stat. 791: . Sec. 617__-_- Sprenger rnacn denn wsmnnnhnenenne sm. . a NN a lc a al a Oa iain, 28 Act of March 8, 1934, c. 49, 48 Stat. 399.____________- ' 13 Miscellaneous: a Annual Practice, 1939, eels ba es 16” Criminal Appeals Rules, 292 U. 8. ck i ci nunnconen 13 Edwards-on Execution, pp. 210-214__..__..-.-_-----_--- 16 Federal Rules of Civil Procedure: SN TI Asics ish sta imine icc nits sib on thsmclacaabeeia 11 TR Garstcclahilink nie mink acalacapcamannndehartie ann tate 23 I a ita a a fe Scale A i ed 10 7 Halsbury’s Laws _of ieatend, Tit. Contempt of Court-_- 1B... 9 Holdsworth, History of English Law, 352~353__._____-- © 15 Huston, Enforcement of ‘Decrees in Equity, 76-77_..-.--- 15 Sir John — Contempt of Court, i, aitendanahanidemsaen 16 ee Gourt of the Wited Ptates - OCTOBER TERM, 1938 _) No. 3560 | WituiaAM McCRONE, PETITIONER - v. | Unitep States of AMERICA : ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT an Re OS BRIEF FOR THE UNITED STATES OPINIONS BELOW The. District Court rendered no opinion. Its order of contempt appears at R. 79-83. The opinions in the Circuit Court of Appeals (R. 110- Wl) are reported at 100 F. (2d) 322. JURISDICTION ‘The judgment. of the Circuit Court .of Appeals was entered December 13, 1958 (R. 121-122). A petition for rehearing was denied on January 16, 1939 (R. 122). The petition for a writ of certio © . (1) -& 2 rari was “filed on February 9, 1939 and granted March 13, 1989, “The jurisdiction of this Court - rests on Section240 (a) of the Judicial Code as amended by the Actof February 13, 1925. QUESTIONS’ PRESENTED 1. Whether the court below: correctly held that the -proc@eding and order were for civil contempt — and that therefore the notice of appeal under the ‘Criminal Appeals Rules was ineffective, there _ being no allowance of an appeal. 2. Whether the Federal Rules of Civil Procedure — ~ are applicable to render the appeal effective ; and, if so, whether the order of contempt should be _ affirmed. " STATUTES INVOLVED The itetutte involved are set forth in the ‘ie _— infra, PP. 27-29. STATEMENT of April 21, 1938, petitioner, a resident of Butte, Montana, was personally served with a revenue agent’s summons, issued under the authority of Section 618 of the Revenue Act of 1928 (infra, p 28), requiring him to appear before Special Agent DeF oe on that date to give testimony in connection the tax liability of a named person for ‘the - years 1932 to 1937, inclusive (R. 22-23, .26). On April: 22, 1938, the Government filed a motion in the United States District Court for the District of 3 Montana for an order of attachment of petitioner, ‘ yequiring him to appear and show cause why he should not submit himself to examination (R. 27). This motion was based upon an affidavit of Special - Agent DeFoe (R. 22-25), in which he stated that vasa part of his official duties he was making an in- vestigation of the correctness of a return ‘made un- der the intexnal revenue laws by a citizen and resi- dent of Montana, and that he had been informed that the petitioner possessed information concern- ing this matter (R. 22-23) ; that thé special agent had served the above-mentioned summons‘ or sub- poena upon the petitioner (R. 23, 26) ; that the lat- ter appeared and informed the special agent that he, the petitioner, did not propose voluntarily to” answer any questions concerning the subject mat- | ter of the inquiry, and did not intend voluntarily to make any statement or give any information whatsoever concerning. tlie subject of the in- quiry; and that the petitioner failed and refused to make any statement-or to answer any questions’ or to give any infor mation concerning: the subject of the inquiry (R. 23-24). The agent also stated that from his investigation he believed that the pe- _ titioner had personal knowledge of facts pertinent atid material to the subject matter of the investiga- tion, and that the petitioner was wrongfully with- holding such facts and information and prevent- ing the investigation (R. 24-25). 4 On April 23, 1938, the petitioner filed an answer, stating that he had appeared and was willing to _ testify as to any matter the answer to which would not incriminate him, that he had been advised by io Special Agent DeFoe that if he refused to answer : ‘ ¢ertain questions, that would be taken as a con- ‘fession of guilt on his part, but that he was willing again to appear before the special agent, provided a competent stenographer of his own choosing . should be allowed to appear (R. 27-28). On the same date the matter was heard by the District . ‘ourt, which found that the petitioner was regu- larly required to appear before the special agent, and wrongfully failed and refused to give any testi- . - mony. The District Court ordered that the peti- tioner appear and testify before the special agent on that and subsequent dates, if necessary (R. 29-31). On April 26, 1938, the special agent filed another affidavit with the District Court (R. 32-40), recit-- ing that after the entry of the above-men*ioned order of April 23, 1938, the petitioner appeared before the agent, and was sworn, but refused to an- swer any question, or to make any statement, as — ‘ shown by a transcript, ‘Exhibit B,’’ incorporated | by reference (R. 36-387). This transcript (R. 43- 45) shows that the petitioner admitted that he had appeared before the special agent pursuant to the order of the District Court, but that he refused to answer—nine questions which were propounded to . - him, upon the-ground of self-incrimination. The 4) : Q + < é . petitioner was asked (1-2) whether he understood that the inquiry did not relate to his own liability; © (3) whether he knew one Ron Pepple; (4) whether he at some time between February 1 and 10, 1937, accompanied Ron Pepple from Butte to. Helena, Montana; (5) whether between said dates he had received from Ron Pepple a sum of money which was given to him by another person; (6) whether between said dates he received from a person other. 4 than Ron Pepple a sum of money. which he subse- ‘quently paid to another person ; (7) whether after being directed to appear and testify, he still de-— clined to answer the questions propounded; (8) _ whether he would continue to refuse to answer simi- lar questions for the reasons stated; and (9) whether he had anything to add to this statement. To each question petitioner replied that he refused to answér the question; that the answer to it would | tend to criminate him; and that he would not be a witness against himself (R. 43-45). He also re- . fused, on the same ground, to examine and sign the transcript of questions and ariswers (R. 45). The affidavit further stated that the investigation did not concern the petitioner or any income tax return made by him, or any act done or required to be done by him under the laws of the United States; that _ the investigation ‘‘concerns entirely another’’ and was not being carried on in the purpose or belief that the knowledge or information of the petitioner would subject the petitioner to any prosecution ; and . AC i 6 “4 that the pilitiomeie was fully advised accordingly before being interrogated (R.'38-39). Sn. This affidavit prayed for an order upon the pe- titioner to’ show. cause why he should not be im- prisoned until he should obey the prior order of the court, and thus purge himself of contempt (R. 39-40). On April 26, 1998, the District Court ordered | the petitioner to appear before it on April 27th * _ and show cause why he should not be punished for | contempt for disobedience of the court’s. order of April .23, 1938 (R. 46). On April 27, 1938, the petitioner filed a motion to quash, upon the grounds that the affidavit upon which the rule and order were made was insufficient in law and in fact ; - that the District Court had no jurisdiction over the person of the petitioner; that the proceedings were improperly entitled because no civil action was pending, no process had been issued, and there were no parties plaintiff or defendant; and that the petitioner’s attorney was not allowed to repre- ; sent him at the proceedings (R. 47-48). The Dis- trict Court, after hearing (R. 50-57), overruled | the motion to quash (R. 57). The petitioner’s at- » torney then stated (R. 57) that ‘‘McCrone is here _ to plead.’? Mr. Brown,.the Assistant. United States Attorney, objected to the entry of a plea upon the ground that (R. 58) ‘““This is no criminal proceeding.’’ -However, upon further insistence, the petitioner was allowed to enter a plea of not guilty (R. 58, 79). After further argument: (R. 7 oe 58-70), the petitioner v was called as a witness j in his — own behalf (R.71). He was interrogated regard- ing the questions asked by Mr. DeFoe, and stated that he believed the answer to a certain question would have incriminated him under the laws of the United States.’ The petitioner’s counsel asked him ' whether another question and answer had been | made at the hearing before the Special agent, and under what law he believed he would incriminate ae ‘himself (R. 72). The District Court stated that. . the mental attitude of petitionér was irrelevant, as. he was not to be punished (R. 72-73), and the court ' asked to be informed of the facts upon which to _ judge ‘‘whether there is any reasonable probability any answer he might make would in any way tend to incriminate him” (R. 74). —_Ne-further proof was offered’ (ibid.). On April 28 the District Court entered its ones (R. 79-83), finding that the matters set forth in the affidavit filed April 26, 1938, were true (R. 80), - that the petitioner (R. 81) “‘wilfully and deliber- ately and wrongfully disobeyed the order and com- mand of this Court entered herein on the 23rd day— of April 1938, * * * and failed, refused, and neglected to give his said testimony as required*by said order * * *.’? The order farther stated (R. 82-83) : The Court further finds that the said Wil- liam McCrone did not on the 27th day of April 1938, or. at all, and upon his appear- 187113—39——2 alll ii 8 ance before the above-entitled Court, in obedience to the rule and order to show cause issued ‘by this Court, show any cause what- soever,. or waS any cause shown what- . soever by him or on his behalf, why he should not be held in contempt of the above- entitled court, or why he should not obey the order of this‘Court, dated April 23, 1938; the Court further finds that the prayer.of the affidavit filed herein-should be granted. Wherefore, * *, * ‘the said William, McCrone be and he is hereby committed to : the custody of the United States Marshal 7 % wee * * eee fC * and to be held in such confinement * * * until the said Williarh MeCrone purges him- ‘self of his said contempt by obeying the order of this Court, duly given and made on the 23rd day of April 1938, by giving his testimony before Paul W. DeFoe .* * *. The petitioner noted an exception. (R. 84), and on May 2, 1938, a ‘‘Notice of Appeal’’ was served upon the Unittéd States Attorney and filed (R. 2-5), - and assignment of errors was served and filed (R. - 87-90). On May 6, 1938, the District Judge allowed and signed a bill of exceptions (R. 21-87). Bail — was allowed by the Circuit Court of Appeals on ' May 9, 1938 (R. 108). The court below dismissed the appeal (R. 121- 122). It held that the contempt was civil, and - that it had no jurisdiction, since petitioner took an - appeal in the manner provided for appeals from a criminal judgment, and had not applied for, or — ob 9 obtflined, an allowance of an appeal.. Haney, J., dissented, on the ground that the appeal was proper under the new Federal Rules of Civil Procedure. 2 A petition for rehearing was denied on J anuary. 16, 1939 (R. 22). ; , ? SUMMARY OF ARGUMENT : \ I The procceding ‘and order were for ‘civil con-— tempt, and the notice. of appeal under the Criminal ~ - Appeals Rules was .therefore ineffective. The. naracter of the order determines whether it is civil or criminal for purposes of appeal. Here the titioner committed only unless and until he him to testify. Moreover, there was no surprise or - variance between the order and the proceedings leading up to it. If the action. were one between _ private parties there could be no question that the order was purely civil and anpealable accordingly. It is no answer that here the order was entered’ at the instance.of a Government officer. The fact: that the Government is a party does not alter the _ _ character of the contempt or of the sanction im- | posed. If the Government were confined to pro- — ceedings for criminal contempt in cases of dis- ‘obedience to procedural orders entered for its ben- eft, unfair and anomalous results would follow, - With disadvantages to both the Government and the party charged with contempt. order was not punitive but coercive; it ordered the uld obey the prior order of the court requiring: “ ; ‘ 10 ' The state courts, in applying the distinctions be- tween ciyil and criminal-contempts, have not re- garded the fact that the State is the moving party as requiring a , holding that-the omg charged is eriminal. : II | “¢ The Federal Rules of Civil Procedure are not applicable to cure the ineffeetive appeal. Since the three-months period for taking an appeal in civil. cases expired prior to September 16, 1938, ’ " when the Rules became effective, it is difficult to discover any basis for their application. The - ‘action was pending in the Circuit Court of Appeals in only a limited sense, and Rule 86 would appear not to be intended to revive a case for decision on the merits in these circumstances. | In any event, if the Court should concipde that the appeal was effective under the new Riles, there. is no occasion to remand the ‘ease to the court | be- low for further proceedings. .The- objections — urged to the order adjudging petitioner in con- tempt are unsubstantial. . There was no showing © that the questions asked had any tendency to in- criminate him under the laws of the United States; and he was advised by' the summons of the identity - of the taxpayer under investigation. | - The judgment below should be affirmed; or, in _ ° the alternative, the order of the District Court - “should be affirmed. ARGUMENT be THK PROCEEDING AND ORDER WLRE FOR CIVIL CONTEMPT AND THE NOTICE OF APPEAL UNDER THE CRIMINAL . ' APPEALS RULES WAS THEREFORE INEFFECTIVE The summons served on petitioner April 21 was issued pursuant to Section 618 of the Revenue Act of 1928, infra, p. 28. Upon petitioner’s refusal to — answer questions put by the revenue agent, the agent sought the aid of the District Court to com- _pel the testimony, pursuant to Section 617 of the Act, infra, p. 27.’ .To the application of the agent . for an order of enforcement the petitioner filed an answer, and argument was heard by the District Court, which on April 23 granted the order of en- forcement applied for (R. 29-31). It-is clear that an appeal would have lain from this order of April ‘23; it constituted a final order in a civil action. Interstate ‘Commerce. Commission v. Brimson, supra; Interstate Commerce Commission v. Baird, 194 U. 8. 25; Jones v. Securities and Exchange Commission, 298 U. S. 1; Brownson v. United States, 32 F. (2d) 844 (C. C. A. 8th) ; Bolich, In- " "1 'These provisions are by no means novel or unique. They had their prototype in the Interstate Commerce Act of 1887 (c. 104, 24 Stat. 879), and they are matched by similar provisions in approximately twenty statutes author- izing the issuance of summons by administrative officers and commissions and their enforcement by the district courts. See [nterstate Commerce Commission v. Brimson, 154 U. S. 447; Note to Rule 45, Federal Rules of Civil Procedure. | > ; 12 ternal lesa Agent v. Rubel, 67 PF. ” 894 - (C. C0. A. 2nd). i. Petitioner, however, chose not to ai from that order, and persisted in his refusal to answer questions. It was then that an application was made by the revenue agent for an order on the peti- | tioner to show cause why he should not be impris- oned until he should obey the order of the court and so purge hiniself of contempt. An.oppo-tunity _-was thus afforded of a second hearing in the Dis- trict Court ‘directed to the privilege of petitioner against answering the questions put to him by the agent. The opportunity was availed of, and after hearing the petitioner and arguments of counsel, the District Court on April 28 committed petitioner to the custody of the marshal to be confined in jail ‘until he should purge himself of. his contempt by _ obeying the order of April 23. This order of April 28 afforded a second basis for appeal. How that appeal should have been taken is the issue here. | _ Petitioner insists that his appeal under the Crim- ‘inal Appeals Rules, by notice of appeal, was proper because the proceeding and order were for a-crimi- nal contempt. We may assume that if the order | - did in fact punish petitioner for criminal contempt thé Criminal Appeals Rules would apply. This as- * sumption is supported by the decision in Wilson v. - Byron Jackson Company, 93 F. (2d) 577 (C. C. A. - 9th) and by the implications of United States v. Goldman, 277 U. S. 229, holding that the Criminal Appeals Act is applicable to ¢riminal contempts. 13 Compare ide ieee v. United States, 233 U. 5. . 604." Our position, and that of the evart below, is that | the proteeding was one for civil contempt, that the order entered was the appropriate disposition” © of such a proceeding, and that, therefore, the Crimi- nal Appeals Rules had no application. _ Putting aside for the moment. two suggestions - of petitioner—that there was no civil action pend- ’ ing, and that the United States or its agents cannot: in any event bring proceedings for civil contempt— * The argument to the contrary would rest on the words: “with respect to any or all proceedings after verdict, or finding of guilt by the court if a jury has been waived, or . plea of guilty, in criminal cases,” contained in the Act-of - March 8, 1934, 48 Stat. 399, and the Criminal Appeals Rules pursuant thereto. See 292 U. S. 660, 661. But these words should probably be regarded as simply descriptive of the ordinary situations where a defendant- has. been placed in . jeopardy and judgment of conviction entered against him. “In Gompers v. United States, 233 U. S. 604, a comparable question was'presented. The statute of limitations for crim- ‘ jnal. offenses outlawed prosecution, trial, or punishment “unless the indictment is found, or the information 1s insti- tuted” within three years after the offense was committed. The court held that the statute was applicable to proceed- ings for criminal contempts, despite the inapplicability of the quoted words to many proceedings for criminal con- tempt, The Criminal Appeals Rules would be literally ap- - _ Plicable in all particulars where the contemnor pleads guilty, and also where, in accordance with sections 21 and 22 of the Clayton Act, 38 Stat. 738-739, a jury trial is had. and a verdict of guilty returned. It would'seem that where there is an order committing for an admittedly criminal contempt, the mode of appeal was not intended to depend upon whether there was a’ jury trial or a se of guilt by the court. - : Nie 14 ; ) ees m there can be no doubt, we submit, that the order was one of committal for civil contempt and ap- pealable accordingly. For purposes of appeal, jhe . character of the order determines whether the cause is civil or criminal. An order which. imposes an . -~- ¥ineonditional fine or unconditional imprisonment for contempt stamps the judgment as criminal; an © ditional on the failure of the’ contemnor to obey the court’s order, marks the “judgment as civil. po of Christensen Engineering Co., 194 U.S. 458; In re Merchants Stock Co., , Petitioner, 223 U.S. 639; Union Tool Co. v. Wilsdn, ; 259 U. S. 107; Foxy. Capital Co., 299 U. & 105. here the order combines civil and criminal sanctic , the. presence of the latter is controlling for purposes ppeal. Ibid. And where the order is a®denial of any re- - _+ order which imposes a compensatory fine payable _ to the injured party, or a fine or imprisonment con- . . dress, the prayer in the application furnishes the - readiest test of the character of the — for appeal. Lamb v. Cramer, 285 U. S. 217. These are manifestly rules of thumb, and as such ey have peculiar usefulness as an assured guide. ‘to the formalities of appeal, while they do not -prejudice the assertion of objections to the charac-* ‘ter of the order entered. Thus’ in the Merchants fA Stock Co. case, suprg, where a fine was imposed for ton of a temporary injunction, ,the fine pay- able one-fourth to the ag States and three- “fourths to the injured p it-was held: that the Cera was a final crimins pilniant, ot an inter- . / ae 15 locutory civil order, and se was reviewable on writ ° ‘of error, but that the question remained whether tiie proceedings were appropriate to support ‘the criminal penalty. See also Gompers v. Bucks Stove _ and Range Co., 221 U. S. 418, 449. Judged by the nature of the order entered, the — present cause is indisputably civil for purposes of appeal. The petitioner was not ordered committed ‘at all. events; but only unless and until he should comply with the court’s prior order. Persons thus committed ‘‘carry the*keys of their prison in their own pockets.’’ In re Nevitt, 117 Fed..448, 461 .(C. C. A. 8th). The sanction is that which courts of equity traditionally pape 40 secure the enforce- ment ‘of their orders in pefsonam.*’ The sanction is not punitive but coercive. It is in the nature of | execution of the coyrt’s processes. See Ex parte Grossman, 267 U. S. 87, 111; Michaelson v. United States, 266 U. 8. 42, 66; Oriel v. Russell, 278 U. 8. 358; Bessette v. W. B. Contes Co., 194 U.S. 324; ‘In re Nevitt, supra; Pitt v. Deninim, 37 N. Y. 235. Such an order, as the foregoing cases show, is the clearest kind of an adjudication of civil contempt.‘ _ *See 9 Holdsworth, History of English Law, 352-353; - . Huston, Enforcement: of Decrees In Equity, 76-7. *The nomenclature in English practice is perhaps more descriptive.. 7 Halsbury’s Laws of England, Tit. Contempt. of Court., distinguishes between “criminal contempt” and “contempt i in procedure.” It is recognized that contempt in. procedure, insofar as it involves more than: an unintentional disregard of a court’s process, may partake of criminal contempt as well, and so have a “twofold character,” giv- aie, 8 16 Sb - dy In peice te nature of the-frder, it is “al meant to suggest that there wasiny divergence tween the character of the order and the character — of the anterior proceedings. On the contrary, the proceeding from beginning to end was typically one for civil contempt. The act of disobedience itself, like most such acts, perhaps took ‘‘the char- acteristics of both a civil and a criminal contempt, and so may not be classified as exclusively one or the other.’’ Lamb v. Cramer, 285 U. 8. 217, 221. The application of the revenue agent fora rule and order to show cause made it plain at the outset, however, that what was sought was simply a co- ercive order to compel obedience to the prior order. The application was that the petitioner ‘show cause ‘‘why he should not be imprisoned in _.gome proper jail until such time as he shall. obey . the order of this Court, heretofore entered * * * and thus purge himself of: his said contempt” (R. ing rise both to a remedial right in the adversary and a power of penal or disciplinary action in the court. /d. p. 24 (2d ed.). The Annual Practice denotes contempts as “special” and “ordinary.” The latter ‘are our civil con- - tempts, “ ‘incurred by a party’s neglect or refusal to do some act which is in justice due to the other party to the cause, such as the giving of answers, the payment of costs, or the like, and the imprisonment which follows is)at the’ prayer of the other party—a prayer to which thefourt cannot re- fuse to accede without a breach of itgAiuty and a denial of justice’ (per Sir John Nicol, Barlée vy. Barlee, 1 Add. 301). See Edwards on Execution, pp. 210-244.” Annual ' Practice, 1939, p. 809. Sir John Fox, Contempt of Court, p. 44, adopts the terms “civil” and “criminal.” \ ? / , ori 17 39). At the hearing on the order to show causs, the United States Attorney consistently main- tained that the proceeding was for civil contempt (R. 58,79). Likewise the District Court, in ruling that the risk of self-incrimination must be deter- mined objectively, atid not by the- belief of the pe- ceanne, explained that the proceedings were for civil,/and not criminal, contempt (R. 73): The: Court. The only order the court would make in this case is that he be con- fined until he comes into. court and.makes ‘the answers the court ordered he shall make, that is the answers to questions properly ~ asked. , Mr. Maury. We except.” | The Court. He is not here for the pur- pose of punishment. The request is he be © confined until he answers the questions _ asked as ordered by the court. .Mr. Maury. That-is punishment. *It is true that the rule and order thereafter issued by the court directed petitioner to show cquse why he. should not “be punished” for his disobedience \of the prior order (R. 46). The use of the term-“punish’) in this connection - dis Tobe significance. The order to show cause was simi- larly framed in Lamb v. Cramer, 285 V. S. 217, 220, and this _ Court held the proceeding to be rgmedial and civil in view of the prayer of the petition for felief. See also tie obser- vations of Judge Learned in In Re Guzzardi, 74 F. (2d) 671, 672 (C. C. A. 2d): “‘Punishment’ is a word apt ' for civil contempts and constantiy so used. Thus, if a man be imprisoned for violation o/ a decree till he complies with it, he would regard himself 1s ‘punished’ though. he could get out when he chose.” 18 Although on the suggestion of petitioner’s counsel. a plea of not guilty was entered (R. 58) this was _ foliowed the same day by the colloquy quoted: - above, and on the following day the court an- nounced that counsel and ‘court were in error in permitting the plea to be entered, since the proceed- ing was not for a criminal contempt (R: 79). And the order (R. 83), as has been observed, was: un- equivocally a civil sanction. Thus the application, the hearing and the deter- mination were all civil in character, and the pe- titioner cannot claim variance or surprise, Cf. Gompers v. Bucks Stove and Range Co.,.221 U. 8. 418. . The petitioner’s contention must be, and it © avowedly is, that the contempt was not susceptible oi treatment as civil. This contention has two branches: (1) That there was no civil actioa pend- ing; and (2) that the United States or its agents cannot sponsor a proceeding for civil contempt. These two arguments may be considered in turn. | 1. The argument that the contempt did not grow out of a pending civil action curiously overlooks the basic proceeding, the application to the District Court by the revenue agent for an order enforcing the summons. This presented a civil case within the cognizance of the District Court.” Any conten- The title of the case in the District Court was “In the. Matter-of the Application for an Attachment Against Wil- liam McCrone” (R. 1, 27). The style of cases of this kind, 5. brought by revenue agents, varies. See, e. g., the following: - Internal Revenue Agent v. Sullivan, 287 Fed. 1388 (W. D 19 tion to the contrary would simply be an attempt to ‘ reargue Interstate Commerce Commission v. Brim- son, 154 U. 8. 447, which put at rest the notion that because the proceeding to compel testimony was in _aid of a nonjudicial investigation it could not be deemed a true case or controversy. See the dis- . senting opinion in that case, 155 U. 8. 3. Furthermore, the proceeding brought by the rev- enue agent was pending at the time of the order | -adjudging petitioner i in contempt, ju the only sense in which the pendency of the preceeding is im- portant. The essential feature in this regard is ‘that the court retains jurisdiction after a final order or decree where the order or decree has not been satisfied. In this sense the proceeding for. “eontempt is part of the main cause, which has~not terminated. Leran v. Krentler-Arnold C U. S. 448, 452-453; Lamb v. Cramer, 285 U. S. 217, 221. ; i. 2. The argument that disobedience to an order _ for the benefit of the United States or its agents cannot constitute civil contempt is one which, if ‘accepted, would have serious consequences. Such a position seems to have been adopted in Federal Trade Commission v. A. McLean &. Son, 94 F. (2d) N. Y.); United States v. First National Bank, 295 Fed. 142 - (S. D. Ala.), affirmed, 267 U. S. 576; Jn Re ‘Iitiernitional Corporation Co., 5 F. Supp. 608 (8. D. N. Y.); Brownson .v. United States, 32 F. (2d) 844 (C. C. A. 8h); Bolich, Internal Revenue Agent v. Rubel, 67 F. (2d) 894 (C. C. A. ' 2d); Miles v. United Founders Corp., 5 F. Supp. 413 (D:N.J.). i ~ a = oil 7 20 e - 802, (C.°C. A. 7th), and because of the substantial conflict with that case the Government did not op- pose certiorari in the case at bar. The McLean case did, however, invelvethe violation of a cease © and desist order by completed acts of disobedience, “and the redress sought by the Commission . was therefore compensatory, not coercive. In this re- spect the cases differ, though it is not perceived — why a genuinely compensatory fine, to reimburse for the expense of discovery and proof of violation - - of an order, should not be regarded as a civil sanc- | tion even where a governmental agency is the ag- - grieved party. Compare Helvering v. = itchell, . 303 U.S. 391.’ To accept the petitioner’s argument would pro- duce the anomaly that in an ordinary civil action between the United States and a private party, the treatment of. disobedience to an order in the pro- ceeding, such as refusal to obey a subpoéna, would depend on whether ‘the disobedience was injuri- — ‘ous to the Government. or to.its-adversary. No :plausible reason can. be suggested for such a discrimination. | Moreover, if the Government were confined to a procecding for criminal contempt, the consequences would be unfair to botlf sides. The Goverrment wr ence ae * Forrest v. United States, 277 Fed. 873 (C. C. A. 9th) . (petitioner’s brief 20) does rot support petitioner’ $ position. There the contempt lay in acts of violence in disregard of an injunction in a labor dispute; the prayer in the contempt proceedings did not speak of compensatory relief; and the | court ordered imprisonment for 60 days and a fine of $100. oe « al would | presumably have to prove its case beyond a peasonable doubt, and might have to establish the bad faith of the disobédient party. See M ichaelson v. United States, 266 U. S. 42, 66. The Government. would probably be unable to compel the party to testify. Jbid. The Government could not ask that the party be adjudged in contempt as a matter of right, but ony as a matter within the discretion of the court. Cf. Union Tool Co. v. Wilson, 259 U.S. 107, 112; E. Ingraham Co. v. Germanow, 4 F. (2d) 1002 (C. C. A. 2d) ; Enoch Morgan’s Sons Co. vy. Gibson, 122 Fed. 420 (C. CG. A. 8th). And in the event that the court,. after hearing evidence, ad- judged the party not to be in contempt, the Gov- ernment would have no right of appeal. Cf. United States v. Goldman, 277 U.S. 229; United States v. Bittner, 11 F. (2d) 98 (C. C. ‘A.4th) ; with which compare Lamb v. Cramer, 285 U. 8. 217. The party charged with contempt would also be subjected to irrational disadvantages. An effort to _ show that the original order was erroneous and that it shouid not be enforced for the benefit of the Government would be legally unavailing, except . perhaps in mitigation of punishment. - Worden v. Searls, 121 U. S. 14, 26-27; McCann vy. New York Stock Exchange, 80 F. (2d) 211 (C. C. A. 2d). If adjudged in contempt, the sentence would be one of absolute fine or imprisonment. And the party in contempt would necessarily suffer the obloquy of a criminal conviction though the Government would be willing to rest content with a civil sanction. ‘ee The presence of the Government as.a party can hardly require so grave a distortion of what would . otherwise be recognized asa simple proceeding to enforce a procedural order of the court. | =a state courts appear not to have taken the - view of petitioner, in cases in which the State is a = /party. The decisions have applied the ordinary dis- tinctions in state practice between civil and crimi- nal contempts, and. have frequently held, where © the State is a party, that ‘contempts may be re- dressed as civil at the instance of the State. De- partment of Health of the State of New Jersey v. Borough of Fort Lee, 108 N. J. Eq. 139 (failure to make disposition of sewage in conformity with decree) ; In re Stewart, 121 Wash. 429 (refusal of witness to testify) ; Eocrasto v. State, 202 Ind. 277 - (failure to obey restraining order in suit to abate’ nuisance) ; People v. Kizer, 151 Ill. App. 6 (failure to obey injunction i in suit to abate nuisance). Wit- mer Vv. District Court of Polk County, 155 Iowa 244 (refusal to testify m tax case). ti is submitted that the contempt in 1 the case at bar was correctly held to be civil, and that there- fore the appeal taken under the Ceinndnal Appeals Rules was \ineffective, there being no allowance of an appeal as required by Section 8 (c) of the Act of February 13, 1925, as amended (infra, ‘p. 27). Alaska Packers Assn. v. Pillsbury, 301 U. S. 174. ‘ it - ie a THE . FEDERAL RULES OF CIVIL PROCEDURE. ARE NOT APPLICABLE TO CURE THE INEFFECTIVE APPEAL; AND IN ANY EVENT THERE IS NO NEED FOR eeimnars PRO- CEEDINGS IN THE COURT OF APPEALS Petitioner does not here contend, and did not con- ‘tend below, as the court pointed out (R. 116), that there was any allowance of appeal. The only basis for supporting the appeal if the contempt was civil _ is that the new Federal Rules of Civil Procedure are applicable. Rule 73. (a), infra, p. 28, provides that ‘“When an appeal is permitted by law from a. district court to a circuit court of appeals and with- -_ in the time prescribed, a party. may appeal from a ee judgment by filing with the district court a notice of appeal.’’ Thus an allowance of appeal is made "unnecessary. The Rules became effective Septem- ‘ber 16, 1938. Petitioner’s notice of appeal, pursuant to the . Criminal Appeals Rules, was filed May 2, 1938. The three-months period for a civil appeal from the order of April 28, 1938, expired July 28, 1938. Thus at the time the new Rules became effective, — the judgment had become final and no longer appealable. Rule 86 of the new Rules, infra, p. 29, provides that they ‘‘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 appli- cation in a particular action pending when the rules take ‘effect would not be feasible or would work Y 24 injustice, in which event the former procedure ap- : plies.””’ With full appreciation of the desirability - of construing the Rules in a liberal spirit, it is diffi- - cult to conclude that they were meant to revive a case which was “pending”’ in the Court of Appeals only in the sense that that court had power to de- termine the effectiveness of the purported appeal; by hypothesis that so-called appeal was ineffective, and doubtless the Court of Appeals could have been ~ ordered by writ of prohibition to relinquish the case. This was the situation unless Rule 86 worked a revival. The language of the Rule, referring to . “further proceedings’ in ‘‘actions then pending,”’ suggests that-no revival was intended, and the dis- _ . senting judge below acknowledged that this view was apparently held by the Chairman of the Com- mittee which submitted the Rules. Cf. Tighe vy. Maryland Casualty Co,, 99 F. (2d) 727 (C. C. A. 9th). If-the Court should nevertheless conclude *" the appeal was effective, we urge that the Court - dispose of petitioner’s objections to the adjudica- tion of contempt without remanding the cause for that purpose to the Circuit Court of Appeals. Cf. — Utah Fuel Co. v. National Bituminous Coal Com- — mission, No. 528, present Term; Bowen v..J ohnston, No. 359, present at (both decided January 30, 1939). : . Petitioner ‘makes no substantial objection to the. . order if it be regarded as civil. It is noteworthy, we believe, that petitioner advances with reluctance 29 the view of the dissenting judge below that the contempt was civil but that the order was properly F appealed from. And the studious avoidance of an... appeal as in a civil case, even by way of supple- ment to the notice of appeal, reinforces the con- clngion that petitioner presents. no substantial. question if the contempt he viewed as eivil. ° ‘The claim of self-inerimination is patently with- out merit. Nowhere is it suggested how an answer * to the questions asked could have any tendency to incriminate petitioner under any laws, much less a direct-tendency to incriminate him under the laws of the United States. Questiéns objected to much - more plausibly have been sustained even in pro- ceedings for criminal contempt. Mason v:.United States, 244 U.S. 362; Miller vy. United States, 95 F. (2d) 492 (C. C. A. 9th) ; Abran®-v. United States, 64 F. (2d)22 (C. C. A. 2d); United States v. Fle- ‘ genheimer, 82 ¥. (2d) 751 (C. C. A. 2d). 7 Finally, thé point made that the record does not disclose the name of the taxpayer under investiga- tion is without merit, sinte the summons served on - petitioner did disclose the name (R. 23), Omission of the name from the public records of the court may be deemed to be. in the interest both of the Government and of the taxpayer, and can not_ prejudice. the petitioner. - ; This proceeding has been pending for almost a year before three courts, and meanwhile the infor- | --mation sought has been. withheld and the. eniforce- ment of the revenue laws obstructed. lt is our po- TEP tod, «- ” ‘at | : - . a a \ - > sition that the appeal Feastom dismissed? but if this conclusion be not accepted, we urge that the | - order of the District Court be now affirmed without g an additional hearing in the court below. — J CONCLUSION ~T te Fox the foregoing reasons, this ne should e judgment hhelow ; or, in the alternative, firm the order of the District Court. éspectfully submitted. Jas | Rosert H. Jackson, 4 . Solicitor General. - Assistant Attorney General. — \y A, Sewann Key, , ; Pau A. FREUND, ea Ear C. CRourter, eG | + James W. Morris, APPENDIX Act of ‘February 13, 1925, c. 229, 43 Stat. 936, as amended. : , Sec. 8. (c) No appeal arene Pe to britig 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. (U.S. C., Title 28, Sec. 230.) | J udicial: Code: SEc. 268. Administration of oaths; con- tempts.—The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at - the discretion of the cdurt, contempts of their authority. Such power to punish con- tempts shall not be construed to extend to - any eases except the misbehavior of any per-' - son in their presence, or so near: thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courtsyin their official transactions, and the disobedience or resistance by any such offi- cer, of by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said oonttn. (U.8: G,, Title 28, See. 385.) | Devens Act of 1928, c. 852, 45 Stat. 791: Sec. 617. JURISDICTION OF COURTS. - (a) If any person is summoned under the - internal-revenue laws to appear, to testify, (27) any judgment or decree before a circuit | : or to produce books, papers, or other data, 28 the district court of the United States for the district in which such person resides. shall have jurisdiction by appropriate proc- ess to‘compel such attendance, testimony, or production of books, papers, or other data. (U. . C., Title 26,. See. 1523. ) Src. 618. EXAMINATION OF BOOKS AND WIR NESS Section 1104 of the iene Act of 1926 i is amended to read as follows: ‘‘Sec. 1104. The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is hereby autiiorized, by any officer or employee of the Bureau.of Internal Revenue, including fhe . field service, designated by him for that pur- pose, to examine any books, papers, records, . or Memoranda bearing upon the matters re- quired to be included in the return, and may require the attendance of the person render- ing the return or of any officer or employee ‘of such person, or the attendance of any . other person having knowledge in the prem- . ises, and may take his testimony with refer- ence to the matter required by law to be in- cluded in such return, with power to admin- | ister. oaths to such person or persons.” (U.S. C., Title 26, Sec. 1514.) FeperAaL RuLgEs oF CrviL PROCEDURE Rue 73. APPEAL TO A CIRCUIT COURT OF APPEALS. (a) How taken. When an appeal is per- mitted by law from a district court to a cir- cuit court of appeals and within the time prescribed, a party may appeal from a judg- ment by filing with the district court a notice of appeal. Failure of the appellant to take -any’of the further steps to secure the review 29 of the judgment appealed from does .not affect the validity of the appeal, but is | ground only for such remedies as are speci- fied in this rule or, when no remedy is speci- fied, for such action as the appellate court: deems appropriate, which may include dis- missal of. the appeal. RULE 86. EFFECTIVE DATE. These rules will take affect | on the day which is 3 months subsequent to the ad- journment of the second regular session of the 75th Congress, but if that day is prior to September 1, 1938, then these rules will take effect on September 1, 1938. They govern all procedd dings 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 appli-_. eation 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: U. S. GOVERNMENT PRINTING OFFICE: 1939 SUPREME COURT OF THE UNITED STATES. _ No. 660.—OctosEr Term, 1938. On Writ of Certiorari ‘to the United States Cireuit Court of Appeals for the. Ninth Cir- cuit. [April 17, 1939:] Mr. Justice Buack delivered the opinion of the ‘Court. - William McCrone, Petitioner, vs. United States of America. The Court of Appeals dismissed petitioner’s appeal from a judg- ment of contempt for failure to obey a District Court’s order to testify before an-Internal Revenue official! This dismissal was proper if ‘the contempt proceeding was civil and not criminal. A notice of appeal was filed and a bill of exceptions signed. But petitioner’s appeal was not, as appeals from civil judgments were required to be, applied for or allowed by the trial judge or a judge -of the Court of Appeals.” - The facts diselose : ; _ On April 21, 1938, an Internal Revenue agent, acting under 26 U. S. C., § 1514 (copied in the margin),® served petitioner with summons to appear before him and testify in connection. with the ony ea of another. Petitioner responded to the summons, but declined to give any statement or information as to the mat: ter under inquiry. Thereupon, both the agent and the Assistant — United States Attorney for the District appeared before the , District Court, and the agent ‘filed an affidavit of facts and prayed that petitioner. be ordered to submit to such questions ‘‘as may be propounded to him . . . that are material and perti- 1100 Fed. (2d) 322, * | 3 7 228 U. S. C. § 230; Aiaska Packers Association v. Pilsbury, 301 U. 8. 174. 3 ‘‘The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is authorized, by any officer or employee of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, io examine any books, papers, records, or memoranda bearing upon the mattets required © to be included in the return, and may require the attendance of the person rendering the return or of any officer or employee of such person, or the at- tendance of any other person having. knowledge in the premises, and may take his testimony with reference to’the matter required by law to be included in such return, with power to administer oaths to such person or persons.’’ pwede wees a ase) e 2: . . McCrone vs. United States. nent to the subject matter’’ of the investigation. After hearing, in which petitioner appeared, the District Court ordered him to appear before the agent and testify upon ‘‘all matters and facts within . . . [his] knowledge and concerning the subject matter of the inquiry and investigation, .. . .’’ Petitioner did so- ap- pear but again declined to answer the agent’s questions. After a second hearing by the District Court, petitioner was fourd in con- temipt for failure to obey the Court’s previous order to testify be- fore the agent and was ordered ‘‘heldin . . . jail ae until . . . [he] purges himself of . . . contempt by obeying the order’’ to testify. © Petitioner insists that no civil action was involved here and that proceedings to which the United States and its agents are parties ean not be civil.! However, Article’ 3, Section 2, of the Constitu- tion, expressly contemplates the United States as a party to civil S, ‘proceedings by extending the jurisdiction of the Federal judiciary . ‘*to Controversies to which the United States shall be a Party.’’ An action by the Interstate Commerce Commission to compel a witness to testify is ‘‘a direct civil proceeding, expressly authorized by an ‘act of Congress. in the name of the Commission, and under the_ direction of the Attorney General of the United States, against the Witness . . . refusing to testify, . . .’’® So here, the mere : presence of the United States as a party, acting through its agents, does not . . the controversy the elements of a criminal proceeding.® In aceardance with its constitutional authority tc do 80, Congress has expressly authorized such a proceeding by an agent of the United States in the Federal courts ‘‘to compel attendance, testimony, or productign of books, papers, or other data.’” (26 U.S. C.-§ 1523).7 > es While particular acts do not always readily lend .themselves to classification as civil or criminal contempts, a contempt is consid- ered civil when the punishment is wholly remedial, serves only the 4 Petitiouer relies on Federal Trade Commission v. A. McLean & Son, 94 Fed. (.d-) 802, 804. There the Court of Appeals for the Seventh Cireuit said, ‘*we became convinced that the [Federal Trade} Commission, an agency of the Government, representing no private interest of its own. but acting solely in the public interest, had no such standing as a private party that it could utilize’ procedure {civil contempt] intended to safeguard the rights and in- terests of private parties.’’ Because of the conflict on this point in .he judg- ment below, we granted certiorari. — U. 8. —. > 5 Interstate Commerce Commission v. Brimson, 154 U. 8. 447, 470. 6 Cf., Helvering v. Mitchell, 303 U. 8. 391, 402. © - 7 Cf., Brownson v. United States, 32 Fed. (24) 844, 848, 849; United States v. First Nat. Bank, 295 Fed. 142, affirmed 267 U. S. 576... McCrone vs. United States. 3 purposes of the complainant, and is not intended as a deterrent to offenses against the public. Here, the summons served on peti- tioner required only that he testify in a tax inquiry properly con- ’ ducted by an agent of the Bureau of Internal Revenue. And the agent’s petition te the District Court, to which we may look in'de- ~ termining the nature of the proceeding,® invoked judicial assistance | solely in obtaining petitioner’s testimony. Authority of the Court was sought to buttress the procedure for collection of taxes and not in ‘‘vindication of the public justice’’,!° as in criminal cases. The judgment of contempt was civil, and appeal from it was governed by the statutory rules of civil. appeals. There remains the ‘suggestion that the appeal in question can be eonsidered a civil appeal properly taken under Rule 73 of the new Federal Rules of Civil Procedure which became effective September 16, 1938.1! . However, petitioner’s notice of appeal was filed May 2, 1938. The controlling statute required application for allowance of a civil appeal within three months after judgment from which appeal was sought. The three months expired July 28, 1938, and - the contempt judgment had become unappealable well before the effective.date of the new Rules. Therefore, petitioner is not aided by the provision of Rule 86 that the new Rules shall ‘‘govern all . . . actions then pending, [September 16, 1938]... .’’ This action—from which there was then no right of: appeal—was not - pending within the meaning of the Rule. ae The Court of Appeals was not in.error in dismissing petitioner’s appeal.for failure to comply with the, statutory requirements gov- erning civil. appeals. Its judgment is | A firmed. 8 Gompers v. Bucks Stove and Range Co., 221 U. S. 418, 441; Fox v. Capital Co., 299 U. S. 105; Lamb v. Cramer, 285 U. S, 217, 220, 221; Oriel v. Russell, 278 U.S. 358, 363; Ex parte Grossman, 267 U. S. 87, 111; Union Tool Co. v. Wilson, 259 U. 8. 107; In re Merchants’ Stock Co.,. Petitioner, 223 U. S. 639; Matter of Christensen Engineering Co., 194 U. 8. 458; Bessette v. W. B. Conkey Co., 194 U. §. 324. ; : ® Cf., leaks v. Cramer, supra, 220; Gompers v. Bucks Stove and Range Co., . supra, 448. : 10Cf, Fox v. Capital Co., supra, 108. 11 4*Rule 73. Appeal to a Circuit Court ef Appeals. ' How taken. When an appeal is permitted by law from a district court to a circuit .court of appeals and within the time prescribed, a party may appeal from a judgment by filing with the district court a notice of appeal. Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but: ‘is ground only for such remedies as are specified in this rule or, when no - Temedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal.’’ - Re --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0154%3A5. Public record. Not legal advice.