and for the docketing of the appeal to and including the sixtieth day after final action taken by this court on the defendants' motion for relief from judgment and final decree under Rule 60(b), 28 U.S.C. See 28 U.S.C. § 1253.
Also on December 23, 1959, the defendants moved for relief from the judgment and final decree of this court of September 17, 1959, pursuant to Rule 60(b), Fed.r.Civ.Proc., 28 U.S.C., asserting in substance that the quoted amendment to the Public School Code has caused the issue in this case to become moot.
On January 4, 1960, the Clerk of this court transmitted certain original papers, hereinbefore referred to as omitted from the record, to the Clerk of the Supreme Court and the complete record in this case was before the Supreme Court.
On March 16, 1960, the plaintiffs filed a request for further findings fo fact and conclusions of law relating to the alleged unconstitutionality of Section 1516 of the Pennsylvania Public School Code, as amended. These, if made, would constitute a ruling by this court that the Act as amended is unconstitutional.
On March 18, 1960, a hearing was had upon the defendants' motion for relief of judgment and thereafter it was decided by this court that the issue of whether this court had jurisdiction to proceed in this case, in view of the notice of appeal and certification of the record to the Supreme Court, should be determined immediately. The parties were requested to brief this issue and hearing was had thereon on May 27, 1960. We direct ourselves to that issue.
The able counsel for the parties have been unable to refer us to any decisions of the Supreme Court or of any other court directly in point and independent research has failed to disclose any. We have considered the technique suggested in Smith v. Pollin, 1952, 90 U.S.App.D.C. 178, 194 F.2d 349, and the opinions in such cases as Miller v. United States, 7 Cir., 1940, 114 F.2d 267, Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 172 F.2d 445, Hunter Douglas Corp. v. Lando Products, 9 Cir., 1956, 235 F.2d 631, and Freedman v. Overseas Scientific Corp., D.C.S.D.N.Y.1957, 150 F.Supp. 394. It appears from an examination of these authorities and such analogies as can be drawn therefrom that the issue of our jurisdiction to proceed to adjudicate the questions presented by the motion based on Rule 60(b) lies in a grey zone and requires a determination of Rules of the Supreme Court, including Rule 13 and Rules 10 and 11, 28 U.S.C.A. We decide the issue against the movants. Rule 10 provides that 'An appeal * * * shall be taken by filing a notice of appeal, in the form and place prescribed by this rule.' Hence, an appeal was taken here. This view is buttressed by the language of Rule 11 which is headed 'Appeal -- time for taking', and states that the time for 'taking' the appeal shall be that provided for filing the notice of appeal. Obviously, when a notice of appeal has been filed within the time prescribed an appeal has been taken. When an appeal has been taken to a higher court, as prescribed by law, ordinarily the jurisdiction of the lower court is ousted by that of the higher tribunal.
Subparagraph 1 of Rule 13 does not require a different conclusion. It provides that it shall be the duty of the appellant to docket the case and to file the record within a specified time but also that for good cause shown a Justice of the Supreme Court or a Judge of a lower court may extend the time in which the notice of appeal may be filed. This rule gives jurisdiction to Justices of the Supreme Court and to Judges of the lower courts to grant extensions but it is clear that the Justices of the Supreme Court have the power to entertain such an application and therefore jurisdiction of the case is in the Supreme Court. Subparagraph 2 of Rule 13 merely provides for certain formal steps to be taken by the appellant to perfect the appeal and is not helpful in determining the issue before us.
Upon consideration of all of the foregoing we are of the opinion that this court does not have the jurisdiction, i.e. the power, to entertain or adjudicate the motion made by the defendants pursuant to Rule 60(b).
The motion therefore will be denied for want of jurisdiction.
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