Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.
In these three separate and distinct but companion cases, motions to dismiss the several appeals were argued before us on March 4, 1957. As each motion relates to a phase of the subject matter of Chief Judge Clark's opinion, written for a unanimous en banc court, in F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F.2d 889, we shall dispose of the three motions together.
Edwards v. Doctors Hospital, Inc. et al.
These are motions by various defendants-appellees to dismiss plaintiff's appeal for lack of timely service of the notice of appeal, and a cross motion by appellant for leave to file appellant's brief and appendix in the event of the denial of the motions to dismiss.
At the conclusion of plaintiff's case, Judge Byers granted the motions of appellees for a directed verdict on March 26, 1956, and the docket entry made on the same date reads:
"Byers J. Case called. Trial resumed. Plaintiff rests. All defendants move for dismissal of the complaint and direction of a verdict. Motions granted. Court directs verdict for each defendant. Jury discharged."
On April 10th costs were taxed and Judge Byers signed a formal judgment, submitted by appellee William Murphy. As has happened in the past, there was a miscalculation of the time within which to serve the notice of appeal, due to the erroneous assumption that the time to appeal ran from the service of a copy of the formal judgment, with notice of the entry thereof, according to the practice in vogue in the New York State Courts.
The determination made by Judge Byers on March 26, 1956, followed by the docket entry, decided the case with finality. There was no occasion for him separately to pass upon the motions by defendants to dismiss the complaint as the dismissal followed as matter of law upon the direction of a verdict in favor of defendants.
Under our ruling in F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F.2d 889, and a long series of earlier cases cited therein, the notice of appeal, based upon a computation from April 10, came too late.
Another curious feature of the case is that after the time to appeal had fully expired, and there remained no possibility of giving our Court jurisdiction of the case, appellant made a motion on May 29, 1956, allegedly pursuant to Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an extension of time within which to file an appeal to this Court, on the ground of "excusable neglect based on a failure of a party to learn of the entry of the judgment."
Since the judgment was final on March 26, the appellant had 30 days until April 25 to file his notice of appeal and an additional 30 days to petition the lower court for an extension of time under Rule 73(a) on showing of excusable neglect. However, this time expired on May 25 and since Rule 73(a) is "mandatory and jurisdictional" and "can not be extended by * * * order of the court" (Marten v. Hess, 6 Cir., 176 F.2d 834, 835), Judge Inch's order on May 31 is a nullity and of no effect. Raughley v. Pennsylvania R. Co., 3 Cir., 230 F.2d 387; Howard v. Local 74, 7 Cir., 208 F.2d 930, 932; Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360.
Accordingly, we have no jurisdiction over this appeal and it is dismissed; and the cross-motion falls of its own weight.
Bertha Building Corporation v. National Theatres Corporation
Gumbiner Theatrical Enterprises, Inc. v. National ...