January 22, 1960
MADISON SHIPPING CORPORATION, PLAINTIFF
NATIONAL MARITIME UNION, ET AL., DEFENDANTS.
Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
Per Curiam: Plaintiffs in this case have moved to dismiss an appeal by the defendants from an order of the District Court forbidding the defendants from doing certain acts pending that Court's hearing on the merits. The grounds for dismissal of the appeal are that the order is in its nature a temporary restraining order and, therefore, not subject to appeal. The question is not at all free from difficulty and the Court is divided. A majority of us, however, believe that the order made is in the nature of a temporary restraining order. It does not settle the merits of the larger claim which the plaintiffs have and it is only to be continued until the District Court can have hearing on the merits and render a decision.
The appeal, therefore, will be dismissed as premature leaving the Court without jurisdiction.
KALODNER, C. J., dissenting: The District Court's restraining order here has a "final and irreparable effect on the rights of the parties" and accordingly is appealable. Cohen v. Beneficial Loan Corp ., 337 U.S. 541, 545 (1949); Morganstern Chemical Co. v. Schering Corporation , 181 F.2d 160, 162 (3rd Cir. 1950); Maxwell v. Enterprise Wall Paper Mfg. Co ., 131 F.2d 400, 402 (1942).
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