APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. (D.C. Civil Action #4113)
Kalodner, Aldisert and Garth, Circuit Judges. Reconsidered: Seitz, Chief Judge, and Kalodner, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges.
The sole issue with which we deal here is: is the denial of a motion to quash a sequestration order (issued in accordance with 10 Del. C. § 366*fn1) appealable under 28 U.S.C. § 1291*fn2 as an appeal of a "final order"? We hold that an order denying such relief is not final and accordingly dismiss the appeal and remand to the district court for further proceedings.
Litigation giving rise to this appeal commenced with a complaint filed by the United States (Plaintiff-Appellee) seeking among other relief a judgment against the Estate of Pearce:
(a) for unpaid estate taxes and interest in the amount of $268,876.18;
(b) for a lien on all property of the estate, including some 27,200 shares of common stock of United States Steel Corporation ("U.S.S.");
(c) for an order pursuant to 10 Del. C. § 366 authorizing sequestration and seizure of the Estate's property in Delaware, (including the U.S.S. stock) and appointing a Sequestrator.
On April 30, 1971 the district court entered an order appointing a Sequestrator and ordering sequestration of the Estate's property in Delaware, including the U.S.S. shares. Thereafter the Estate moved to quash the order of sequestration. That motion asserted, inter alia, that the stock was not subject to sequestration by reason of the proceedings in Canada; that both Canada and the Province of Ontario have interests in and claims upon the stock; that the defendant "Estate of Claude Beresford Pearce" is not a proper defendant; and that the sequestration was defective because the non-residence of the named defendant was not alleged in the complaint as required by the Delaware statute.
On September 14, 1972 the district court filed an opinion*fn3 and entered an order denying the Estate's motion to quash the April 30, 1971 order of sequestration. Thereafter the Estate moved for an order of certification [interlocutory appeal] under 28 U.S.C. § 1292(b), which motion was denied by the district court. This appeal by the Estate, asserting jurisdiction under 28 U.S.C. § 1291, followed.*fn4
Under 28 U.S.C. § 1291 "finality" is a prerequisite to appeal. This general rule, however, has been subject to certain qualifications and limitations. See Forgay v. Conrad, 47 (6 How.) U.S. 201, 202-203, 12 L. Ed. 404 (1848); Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 93 ...