opinion: SPENGLER et al. v. HUGHES TOOL CO.
  No. 3639.
  Circuit Court of Appeals. Tenth Circuit.
  Aug. 7, 1948.
  Kelsey Hutchinson and Earl Pruet, both of Oklahoma City, Okl. (Richardson, Shartel, Cochran & Pruet, of Oklahoma City, Okl., on the brief), for appellants.
  Robert F. Campbell, of Houston, Tex., Fisher Ames, of Oklahoma City, Okl., Andrews, Kurth, Campbell & Bradley, of Houston, Tex. (Ames, Ames & Daughtery, of Oklahoma City, Okl., on the brief), for appellee.
  Before PHILLIPS, BRATTON and and MURRAH, Circuit Judges.
  BRATTON, Circuit Judge.
  Hughes Tool Company brought an action against A. F. Spengler Company and A. F. Spengler for injunctive relief. In 1937, decree was entered granting a permanent injunction. No appeal was taken, and the decree became final. In 1946, the defendants filed in the case a petition for modification of the decree. On August 9, 1947, judgment was entered dismissing the petition. 73 F.Supp. 156. On August 21, a motion for new trial on the petition was filed; and on September 26, a supplemental motion for new trial was filed. On October 14, an order was entered denying the motion and the supplemental motion. And on December 29, notice of appeal was filed, appealing from the judgment entered August 9 dismissing the petition for modification of the original decree. A motion was filed in this court to dismiss the appeal on the ground that it was not taken within the time prescribed by law.
  Under Rule of Civil Procedure 73, 28 U.S.C.A. following section 723c, an appeal is taken from the district court to the circuit court of appeals by filing with the clerk of the district court a notice of appeal. And the filing of the notice within the time prescribed by law is essential to the jurisdiction of the circuit court of appeals. Stradford v. Wagner, 10 Cir., 64 F.2d 749.
  Section 129 of the Judicial Code, as amended, 28 U.S.C.A. § 227, provides in presently material part that where “an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, or an interlocutory order or decree is made appointing a receiver, or refusing an order to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of property held thereunder, an appeal may be taken from such interlocutory order or decree. * * * The appeal * * * must be applied for within thirty days from the entry of such order or decree * * Taking up the legislative background against which the statute was enacted as one element in determining its operative scope, section 7 of the Act approved March 3, 1891, 26 Stat. 826, 828, provided that where an injunction should be granted or continued by an interlocutory order or decree, an appeal might be taken from such order or decree within thirty days from its entry. By the Act approved February 18, 1895, 28 Stat. 666, section 7 was amended to provide that where an injunction, should be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction should be refused, an appeal might be taken from such interlocutory order or decree within thirty days from its entry. Section 7 was again amended by the Act approved June 6, 1900, 31 Stat. 660, to provide that where an injunction should be granted or continued or a receiver appointed by an interlocutory order or decree, an appeal might be taken from such order or decree within thirty days after the entry thereof. The statute was further amended by the Act approved April 14, 1906, 34 Stat. 116, but the amendment does not seem to be material here. The Act approved March 3, 1911, 36 Stat. 1087, being the Judicial Code, followed. Section 129 thereof provides that where an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree within thirty days from its entry. By the Act approved February 13, 1925, 43 Stat. 936, section 129 was amended, and as amended it contains the provisions having pertinency here. And finally, the section was further amended by the Act approved April 3, 1926, 44 Stat. 233, but the amendment relates to appeals in admiralty and therefore has no bearing here. A careful examination of the several amendments considered in their totality indicates clearly a Congressional intent and purpose to broaden the statute. In its original form, the statute was limited to appeals from interlocutory orders or decrees granting or continuing injunctions. It went no further. But by process of successive amendments, it now covers a much larger field. And while other parts of the statute refer to an interlocutory order or decree granting, continuing, modifying, refusing, or dissolving an injunction, and to an interlocutory order or decree appointing a receiver, or refusing to wind up a pending receivership, the part relating to a judgment or decree refusing to dissolve or modify an injunction contains no such restriction. It provides in clear and unmistakable language that an appeal from an order or decree refusing to dissolve or modify an injunction shall be taken within thirty days from the entry thereof. The word “interlocutory” is not to be found in that part of the statute. And it cannot be said that the omission of the word was an oversight. Instead, it indicates that for reasons satisfactory unto itself, Congress determined that an appeal from any and every order or decree refusing to dissolve or modify an injunction shall be taken within thirty days from the entry of such order or decree. It must be presumed that if Congress had intended to limit that part of the statute to the taking of an appeal from an interlocutory order or decree refusing to dissolve or modify an injunction, it would have used apt and appropriate language to indicate such purpose. But Congress failed to do that.
  Upon careful consideration, we think that Section 129, supra, governs the time within which the notice of appeal must be filed from an order or decree refusing to dissolve or modify an injunction. And since the notice of appeal in this case was filed long after the time had expired, the appeal is dismissed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.