McCrone

This is an appeal-from an order of the District Court finding appellant in contempt of court. The proceedings out of which the contempt order grew were brought under authority of act of Congress, 26 U.S.C. A. § 1523(a), as follows:

“ * * * To enforce summons. If any person is summoned under the internal-revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.”

The proceedings were initiated by a Special'Agent of the Bureau of Internal Revenue who, in an affidavit filed in the District Court, alleged that in the course, of his official duties he issued a subpoena, as he was authorized to do, and served it upon-appellant to appear and testify as to certain knowledge believed to be had by appellant as to a tax return under investigation. He alleged that appellant appeared before him at the time and place designated in the subpoena but refused to give him any information or answer any questions concerning the subject of the inquiry. After hearing…

(dissenting),

I dissent.

jn tbe jnstant case, the majority opinion bojds tbat tbe appead should be dismissed because appellant did not comply with 28 u.S.C.A. § 230, which provides that no »appeal intended to bring any judgment or decree before a circuit court of appeals for rev¡ew shall be allowed unless application therefor be duly made within three months after the entry of such judgment or decree”. That statute is treated as being in existence and as the controlling rule,

prior t0 our hearing of the cause, there became effective the Federal Rules of Civil Procedure, which provide in rule 73(a), 28 U.S.C.A. following 723c, that “a party may appeal from a judgment by filing with the district court a notice of appeal”. It thus appears that the two rules regarding the procedure for taking an appeal are inconsjstent. The question as to whether or not appellant used the proper procedure is' now presented. If both rules are effective, we bave a choice as to which rule we will appjy_

T, . , , , _ ... . .. ,, , „ It might be argued that the old rule pr.oyi *r allowance of the appeal is no £ existence because of ^ statute *er which the Federal Rules of civil Procedure were enacted)…