Opinion
No. 7818.
April 6, 1939.
Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur F. Lederle, Judge.
Payne Payne and Albert McClatchey, all of Detroit, Mich., for appellant.
Robert S. Marx and Lawrence I. Levi, both of Detroit, Mich., for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
In an appeal by one of two defendants from a joint decree for deficiency against both, lodged in this court before the effective date of the Rules of Civil Procedure, it appears that there was no summons and severance nor any notice equivalent thereto in respect to the non-appealing defendant. In this situation it appears that we have no jurisdiction to entertain the appeal. Oakland County, Michigan, v. Hazlett, 6 Cir., 87 F.2d 795; Preston v. Fidelity Deposit Co. of Maryland, 6 Cir., 98 F.2d 430. Since the decree is joint in form we may not disregard the face of the record. Hartford Accident Indemnity Co. v. Bunn, 285 U.S. 169, 52 S.Ct. 354, 76 L.Ed. 685.
While reluctant to dismiss for failure to comply with procedural requirements, especially as these now have been abandoned, we do so in the present case with less regret since an examination of the meritorious question involved in the appeal does not persuade us of error in the entering of the decree, wherefore it is ordered that the appeal be and it is hereby dismissed.