Burton R. Raughley v. Pennsylvania Railroad Company ( 1956 )

GOODRICH, Circuit Judge.

In this case the appellee has moved to dismiss the appellant’s appeal, alleging it not to be timely brought. The case takes us to an examination and application of the Rules of Civil Procedure, 28 U.S.C., having to do with the regulations of timeliness for appeal.

Specifically to present the problem the docket entries are herewith set out:

“Dec. 10, 1954. Opinion, Kirkpatrick, Ch. J. granting judgment in favor of defendant, filed.

“Dec. 10, 1954. Judgment in favor of defendant with costs, filed. 12/13/54 Noted and Notice Mailed.

“Jan. 4, 1955. Plaintiff’s Petition for Reargument and Order of Court allowing same filed. (Noted and Notice mailed 1/5/55.)

“Feb. 28, 1955. Argued sur Petition for Reargument on motion for judgment on the pleadings.

“May 12, 1955. Opinion, Kirkpatrick, Ch. J., sur reargument filed.

“May 16, 1955. Order of' Court denying motion for reargument, filed. 5/17/55. Noted and Notice Mailed.

“May 16, 1955. Plaintiff’s notice of appeal, filed.”

A casual inspection of these entries shows that the original judgment was granted December 10th and the notice of appeal was filed the following May 16th. Can the appellant bring his case within any of the provisions which extend the ordinary time for taking an appeal?

We start with rule 73 as amended in 1946 and 1948. Rule 73(a) lays down the general rule that the appeal must be taken within thirty days from the entry of the judgment appealed from. Then follow certain exceptions not applicable here. Following these is certain language which had better be quoted.

“ * * * The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59. * * * >»

The reference to the other rules takes us, of course, to those rules. Rule 50(b) has to do with motions for judgment n.o.v. Rule 52(b) has to do with amendment of findings of fact; rule 59, motions for new trial or to alter or amend the judgment.

The running of the time for appeal is terminated if timely motions under any one of these rules are made.¹ But each one of these rules provides that the motion, to be timely, must be made within ten days after (1) the receipt of the verdict or the discharge of the jury under rule 50(b) or (2) the entry of the judgment under the other rules.

Now is there any way in which such a motion, even though not timely made, can still have the effect of tolling the period for appeal? Specifically did the court below produce such an effect by entertaining and ruling (on May 12) on appellant’s motion of January fourth? We turn to rule 6(b) as amended in 1946. This we shall have to quote:

“(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 25, 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.”

It will be noted that the last clause prohibits a court from extending the time for appeal under rule 73(a), “except to the extent and under the conditions stated in [it].” Rule 73(a) does not specifically authorize a court to extend this time by entertaining and ruling on an untimely motion. We think that it cannot so do. The same clause in rule 6(b) prevents a court from extending the time for making those motions which under 73(a) toll the time for appeal. Thus it seems apparent that 6 (b) renders a court powerless to entertain such motions when untimely made.² The action of the trial court here in regard to the motion of January fourth must therefore be considered as a nullity.

The appellant has cited us quite a number of cases tending to show a possibility of a freer time limit than the above discussion would seem to indicate. Some of these cases are in bankruptcy. In bánkruptcy a special rule prevails because a bankruptcy court has no terms. The bankruptcy cases are not relevant in a case like this.³

The other decisions, and there are some, were before the 1946 amendment to rules 6(b) and 73(a). Prior to the 1946 amendment there had been some confusion and a split in authority. What may be called the leading case against the enlargement of time where the rules have not been complied with is Safeway Stores, Inc., v. Coe, 1943, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L. R. 782. The opinion by Chief Judge Groner is a thorough discussion of the problem. There is little to add to it. The conclusion there reached, prior to the 1946 amendment, is sustained by adequate authority⁴ although as said above the decisions were not in complete accord.

The purpose of the. 1946 amendment, according to the notes of the advisor committee, was to clear up the conflict of authority and to follow the rule of the Safeway Stores case above cited.⁵ These rules, especially in the light of what the advisory committee said about the purpose of the amendments, seem clearly to settle this case in favor of the appellee’s motion except for one point.

That point has to do with what happened in the chambers of the trial judge on December 20th or 21st, 1954. Counsel for the appellant says he dropped in to see the trial judge to call his attention to the fact that, in counsel’s opinion, the decision had been rendered against him on a ground not argued or briefed by either party. He requested the court, he says, to permit a reargument so that the question could be presented. At the judge’s request, the narrative runs, counsel left a memorandum of his authorities with the judge’s secretary for examination. On January 3, 1955, counsel was informed by the court that the reargument would be allowed and it was, as the docket entries show.

Now the question is whether this informal visit to the judge’s chambers will constitute a motion under any one of the rules above mentioned so as to comply with the requirement of timeliness. We have no record whatever; all the statements above made were given us by counsel upon the argument of the motion to dismiss. Counsel is a member of the bar of this Court in good standing and we have no reason to think that he is not giving us frankly the best of his recollection concerning the matter. It will be noted, however, that his opponent was not present at the conference. No notice was given to his opponent, so far as we know. No written motion was presented to the judge. No order was made by the judge concerning the submission of the memorandum. Nothing came out of the matter until the order for reargument made in January.

Rule 7(b) (of the Rules of Civil Procedure) is pretty explicit on the point and reads as follows:

“(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.”

The purpose of the rule is, of course, to give a simple and elastic procedure without too much emphasis on form. There also appears in the rules already discussed an emphasis upon the element of promptness, with a desirable view in mind of keeping litigation moving instead of letting it drag. In the conduct of any organization which has many things to do, some form of system is required lest everything become so botched that the business cannot be done. This applies to the running of an army, a mercantile establishment or a court. We think rule 7(b) (1) is to be taken as meaning what it says. That being so, an informal request to a judge with no notice to an opposing party and no order by the judge following the request cannot be considered as a motion under the other rules. A similar position was taken by this Court in In re J. & M. Doyle Co., 3 Cir., 1942, 130 F.2d 340.⁶

Our conclusion is that the appeal came too late and the appellee’s motion to dismiss must be granted.

1 . It will be noted that not all post judgment motions are enumerated in 73(a). No mention is made of motions under 60 (a) for the correction of clerical mistakes or under 00(b) for relief from judgment , because of mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, etc. The conclusion which reasonably follows from the omission of 60(a) and 60(b) is that motions under these rules do not affect the running of the time for appeal. Rule 60(b) expressly provides that a motion under that section “does not affect the finality of a judgment or suspend its operation. * * * ” See 7 Moore, Federal Practice H 60.29 at p. 331 (2nd ed. 1955).

2 . Such an effect is precisely what the Committee desired.

“* * * Under the proposed amendment to rule 6(b) the court may not enlarge the time for taking action under rules 50(b), 52(b), 59(b), (d) and (e), and 60(b); and the time periods of these rules limit the court’s power just as effectively as the term time, which they replace, formerly did. See Moore and Rogers, Federal Relief from Civil Judgments, 1946, 55 Yale L.J. 623, 627-630, 685-693.” 7 Moore, Federal Practice ff ' 73.01 [5] at p. 3113 (2nd ed. 1955) ; 3-A Ohlinger, Federal Practice 614 (rev. ed. 1948); 1946, 5 F.R.D. 487. See also notes 4 and 5 infra.

3 . See Committee note of 1946 to amended rule 73(a), quoted in 7 Moore, Federal Practice f 73.01 [5] at p. 3112 (2nd ed. 1955); 3-A Ohlinger, Federal Practice 613 (rev. ed. 1948); 1946, 5 F.R.D. 486. See also, Safeway Stores, Inc., v. Coe, 1943, 78 U.S.App.D.C. 19, 136 F.2d 771, 774, 148 A.L.R. 782. Every case cited by appellant is specifically mentioned in the committee note. Some involve bankruptcy proceedings; the others have been made obsolete by the 1946 amendment.

4 . See Jusino v. Morales & Tio, 1 Cir., 1944, 139 F.2d 946; Boro Hall Corp. v. General Motors Corp., D.C.E.D.N.Y. 1947, 6 F.R.D. 539.

5 . The relevant portion of the Committee notes reads as follows;

“* * * In ordinary civil actions governed by the Federal Rules of Civil Procedure, however, the better view is that when the time limits prescribed in the rules expire, the court loses its jurisdiction to entertain a motion, as for new trial or for a rehearing or to vacate or amend, as the case may be, and cannot thereafter entertain such a motion and thereby start the appeal time running anew. Safeway Stores, Inc., v. Coe, 1943 [78 U.S.App.D.C. 19] 136 F.2d 771 [148 A.L.R. 782]. * * *” 7 Moore, Federal Practice If 73.01 [5] at p. 3112 (2nd ed. 1955); 3-A Ohlinger, Federal Practice 613 (rev. ed. 1948); 1946, 5 F.R.D. 486. The Safeway approach has been consistently adopted in cases arising after the 1946 amendment. Slater v. Peyser, 1952, 91 U.S.App.D.C. 314, 200 F.2d 360; Virginia Land Co. v. Miami Shipbuilding Corp., 5 Cir., 1953, 201 F.2d 506; Fine v. Paramount Pictures, 7 Cir., 1950, 181 F.2d 300; William Goldman Theatres v. Loew’s, Inc., D.C.E.D.Pa.1949, 83 F.Supp. 455; Greenwood v. Greenwood, D.C.E.D.Pa.1954, 16 F.R.D. 366; United States v. 385.93 Acres of Land, etc., D.C. D.N.H.1954, 16 F.R.D. 557; Creedon v. Smith, D.C.N.D.Ohio 1948, 8 F.R.D. 162.

6 . Cf. Fine v. Paramount Pictures, 7 Cir., 1950, 181 F.2d 300, 303. “The trial court did not have jurisdiction to hear and pass on reasons for a new trial which were not assigned and served on the defendants within ten days after the entry of the judgment. * * * ” It will be noted that rule 5(a) provides that “every written motion other than one which may be heard ex parte, and every written notice * * * shall be served upon each of the parties affected thereby * * * .”