(dissenting).
If I thought this Court had jurisdiction of this appeal I could agree with the majority that the district court had jurisdiction as a court of admiralty of the controversy which the libellant brought before it. But I think this Court does not have any jurisdiction over the appeal and therefore I dissent.
The majority of this Court, the district .court, and the parties seem to be in agreement that this is an attempt to appeal from an interlocutory order and that compliance with 28 U.S.C.A. § 1292(b) is required in order to give this Court jurisdiction of the appeal. The majority is of the opinion that the requirements of the statute have been met. Notwithstanding that I stand before the majority stigmatized with the brand of being hy-perteehnically critical, I express, with conventional deference, my disagreement.
It does not seem to me that the assertion of jurisdiction is buttressed by the lack of knowledge of the appellants’ esoteric proctors that the allowance of an appeal in admiralty is not required. I cannot find myself aided on the jurisdictional question by the filing of an application for an immediate hearing, by the entry of an order fixing a time for hearing, or by informal discussions with individual judges. None of these things, so it seems to me, have any relation to meeting the requirements of Section 1292(b). This section provides:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in . writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order; Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C.A. § 1292(b).
The chronological sequence of the events here pertinent,1 as I view them, are as follows:
(a) On April 7,1961, the district court entered the order2 from which the respondents seek to appeal;
(b) On April 11,1961, the respondents filed notice of appeal3 in the district court;
(c) On April 19, 1961, the libellants filed in this Court their motion seeking *706to dismiss the appeal in which it was recited that the order was interlocutory and not appealable; and
(d) On April 26, 1961, the district court entered an order “nunc pro tunc in lieu of the order” of April 7, 1961.
The order of April 26 was, apparently,4 the same as the order of April 7 except for the recital in the second order that the district court was of the opinion that “the order previously entered herein involves a controlling question of law * * * and that immediate appeal from the order may materially advance the determination of the litigation.” There has been no application to this Court for permission to take an interlocutory appeal. The absence of the record of the Court’s certificate, of the application and of the order seem to me to be something other than “formal technical imperfections” that can be disposed of by the delicate brush with the soft bristles.
Aside from these so-called formal technical imperfections there seems to me to be a further reason which should require that the appeal be dismissed. On April 7 the order was entered from which an attempt was made to take an appeal. It may be that the statutory requirement that the district judge shall state “in such order” his opinion that an immediate appeal will advance the ultimate termination, is a formalistic and technical matter that ought not be insisted upon. But it is not formalistic nor technical, in my belief, that the appeal be taken within the time authorized by the statute. This Court may permit an appeal from an order not otherwise appeal-able if, as the statute .says, “application is made to it within ten days after the entry of the order.” The ten days ran from April 7. During the time allowed there had been no application to this Court permitting the appeal but nearly twice the ten days had passed before the district judge stated the opinion that was a prerequisite to making the “within ten days” application to this Court.
That the Congress intended to require that application to the Court of Appeals be made within ten days from the entry of the order from which the appeal is sought is shown by the report of the Senate Judiciary Committee from which I quote:
“H.R. 6238 would place the existing provisions of section 1292 in subsection (a) of that section, and would add a new subsection (b), by virtue of which it would be possible for a district judge in a civil action to make an order not otherwise ap-pealable under section 1292 subject to appeal by stating in writing in his order that the order involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Following the issuance of such a written statement, as a part of the court’s order, the litigant may make an application to the court of appeals within 10 days after the entry of the order to permit an appeal therefrom. ######
“Another protection against delay which is contained in this legislation is the provision which requires a litigant to make application within 10 days after the entry of the order if he desires to take such an appeal.” S.Rep. 2434, 85th Cong.2d Sess. U.S. Code Cong. & Adm.News 1958, p. 5255.
*707The taking of the appeal was conditioned upon the inclusion in the order of the district judge’s opinion of the desirability of an immediate appeal. After the time for compliance with the condition had elapsed and the period for making application for permission had expired, the majority restored the extinct right by a roll back of the calendar. By the determination expressed in the majority opinion, the district court may, by nunc pro tunc orders or amendments of orders, extend the time for taking an appeal. This seems to me to violate the provisions of 28 U.S.C.A. § 2107.5 Not only had the ten days fixed by Section 2192(b) expired on April 26th, but the fifteen days prescribed by Section 2107 had gone by. Except as permitted by statute in the case of excusable neglect based on failure to learn of the entry of the judgment, order or decree, it has not heretofore been the rule that the district court has power to extend the time for appeal. Knowles v. United States, 5 Cir., 1958, 260 F.2d 852. See also Padgett v. United States, 5 Cir., 1959, 272 F.2d 774; Guiberson Corporation v. Equipment Engineers, 5 Cir., 1958, 252 F.2d 431; Virginia Land Co. v. Miami Shipbuilding Corporation, 5 Cir., 1953, 201 F.2d 506; Lejeune v. Midwestern Insurance Co., 5 Cir., 1952, 197 F.2d 149; Crump v. Hill, 5 Cir., 1939, 104 F.2d 36. Of the decisions of this Court, cited by the majority to avoid the hypercritical technicalities, of jurisdictional requirements, there are those which construe applications to appeal in forma pauperis, filed within the time for taking an appeal, as substantial compliance with the requirement for filing notice of appeal;6 another treats a waiver of service of notice of appeal as the equivalent of a notice of appeal;7 while still another permitted an order allowing the appeal on the original record to be regarded as the equivalent of a notice of appeal.8 It may be noted that in the case last cited the Court concluded that, under the facts of the case a notice of appeal had been timely filed.
It seems to me that when ten days had elapsed after the entry of the district court’s order without any opinion of the district judge, as the statute requires, and without any application being made to this Court for permission to appeal, as the statute requires, this Court did not require and could not have acquired any jurisdiction of an appeal from such order. I am not persuaded, as the majority seems to suggest, that we should assert jurisdiction over the appeal because the matter could come up on another appeal timely taken from another order containing proper recitals. I am not convinced that this could be done, and I would not decide that it could or could not be done by an advisory opinion. If the requirements for conferring jurisdiction are not met, we do not have jurisdiction and should not attempt to exercise it. The desirability of deciding a question is not one of the jurisdictional tests.
There are, I think, other grounds upon which the majority opinion is untenable but no other reasons need be stated if, as I believe, there has been a failure to do what the statute requires within the time the statute requires that it be done. Being so minded, I
Dissent.
. Omitting the unnecessary motion and order for the allowance of the appeal, motions and orders for setting hearings, and conferences, both informal and formal, with individual judges.
. “Ordered, Adjudged and Decreed that the motion of the Respondents for an order dismissing the libel and complaint herein and vacating the attachment of the vessel S/S Panagiotis D. by the Marshal of this Court, be and the same is hereby denied.”
. “Please take notice that * * * respondents in the above entitled cause, *706hereby appeal to the United States Court of Appeals for the Fifth Circuit from the decree of this court entered herein the 7th day of April, 1961.”
. It was not a part of the record on appeal nor has it subsequently been made a part of the record. It was before the court, if at all, only in the form of a telegraphed, and, of course, uncertified copy which was delivered during argument. A copy of the order, attested as a true copy by the Clerk of the district court, was received by the Clerk of this Court the day after the matter was submitted.
. In any action, suit or proceeding in admiralty, the notice of appeal shall be filed within ninety days after the entry of the order, judgment or decree appealed from, if it is a final decision, and within fifteen days after its entry if it is an interlocutory decree.
. Des Isles v. Evans, 5 Cir., 1955, 225 F. 2d 235; Roth v. Bird, 5 Cir., 1956, 239 F.2d 257.
. Crump v. Hill, 5 Cir., 1939, 104 F.2d 36.
. Carter v. Campbell, 5 Cir., 1960, 285 F.2d 68.