Hoiness

Appellant (Earl P. Hoiness) filed a libel in personam against appellees (the United States, the American South African Line, Incorporated, and others) in the District Court of the United States for the Northern District of California. The named appellees answered the libel. The others did not ■answer and, so far as the record shows, were not served with process. A trial was had. Thereafter, without considering the evidence, the court concluded that it lacked jurisdiction, and that the libel, therefore, ■should be dismissed. These conclusions were stated by the court in an opinion filed ■on August 5, 1946. 1 2Thereupon, on August 5, 1946, the court entered an order dismissing the libel.

The order of August 5, 1946, was a ■final decision, within the meaning of § 128 (a) of the Judicial Code, 28 U.S.C.A. § 225 (a), and was appealable, 3 but no appeal was taken therefrom.

The concluding sentence of the order of August 5, 1946, 4 directed appellees’ counsel to submit findings of fact and conclusions of law. There was no apparent reason for súch a direction. The court’s conclusions of law were stated in its opinion. 5 If its conclusions were correct, no findings of fact were…

(dissenting).

I think we may, without doing violence to the statute, treat the decree of October 14, 1946 as a “final decision.” Clearly, the trial court understood it to be such, and the parties on both sides have so treated it for the purposes of the appeal.

*506 Generally speaking, where an order or judgment has been entered effecting the final disposition of a cause, the federal appellate courts have applied the principle that the subsequent entry of a second judgment, making an identical disposition, cannot be permitted to operate as an extension of the statutory period for appeal. Accordingly, appeals from such later judgments are commonly dismissed where taken after expiration of the statutory time for appeal from the first judgment. 1 2The rule is a salutary one, serving, as it does, to vindicate a substantial requirement of law. Such was the situation obtaining in the only authority cited in the majority opinion, namely, Liberty Mutual Ins. Co. v. Pillsbury, 9 Cir., 154 F.2d 559 . There the order held to be a final decision was entered December 26, 1944, whereas the appeal from the later decree was not taken until April 24, 1945, that is, more than three months after…