Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
The plaintiff has moved to dismiss an appeal by the defendant from a judgment entered in the district court upon a verdict in the plaintiff's favor rendered in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The motion is made upon the ground that the judgment is not yet final and hence not appealable.
The judgment was entered on the verdict in the district court on November 24, 1954. Five days later the defendant filed its motions for judgment in its favor n.o.v. and for a new trial. The motions came on for argument in the district court on May 20, 1955 and on June 6, 1955 the district court entered its order denying the motion for judgment n.o.v. and dismissing the motion for a new trial. The latter action was stated to be upon the ground that the motion for a new trial had been abandoned by the defendant. Two days later the defendant filed a petition for reargument of its motion for a new trial, asserting that it had not abandoned the motion, and on June 16, 1955 the district court granted the defendant's petition for a reargument of its motion for a new trial.*fn1 We were informed at bar that reargument had not yet taken place. On June 28, 1955 the defendant filed in the district court its notice of appeal from the judgment which had been entered against it on November 24, 1954.
The plaintiff contends that the appeal thus taken by the defendant was premature since the defendant's timely motion for a new trial had been reinstated by the district court's order granting reargument and was pending and undetermined at the time the appeal was taken. We think that this contention is correct and that the appeal must, therefore, be dismissed.
Civil Procedure Rule 73(a), 28 U.S.C.A., provides in pertinent part:
"When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * *. 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: * * * denying a motion for a new trial under Rule 59."
It will thus be seen that the running of the time for taking an appeal from a judgment in a civil action is terminated by the making of a timely motion for a new trial and does not commence to run again until the motion has been denied. Rule 59(b) provides that a motion for a new trial shall be served not later than 10 days after the entry of the judgment. In the present case the motion was filed five days after the entry of judgment. There is no suggestion that it was not served at the same time. It was, therefore, clearly timely.
The defendant, however, points to the fact that the motion was dismissed by the district court on June 6, 1955 and it argues that the time for appeal commenced to run again on that date and that the action of the district court in reinstating the motion and granting reargument of it was in violation of Rule 6(b) and did not operate to stop the running of the appeal period. We do not agree. On the contrary we have no doubt of the power of a district court, after denying or dismissing a motion for a new trial, to entertain an application for reargument of the motion and thereupon to reinstate the motion and order it to be reargued.*fn2 Moreover such action, if taken more than 10 days after the entry of judgment, does not violate the prohibition of Rule 6(b) against extending the time fixed by Rule 59(b) for serving a motion for a new trial.For an application for reargument of a prior motion for a new trial is not to be regarded as itself a motion for a new trial or even as a renewal of such a motion.*fn3 It is simply a request that the court reconsider its action upon the original motion. If the reargument is granted the original motion is heard anew upon the original papers just as if it had never previously been heard or determined.*fn4
It may be conceded that if the district court does not grant reargument of the motion for a new trial until after the time allowed for appeal by Rule 73(a) has run from the original denial of the motion the action of the court in subsequently doing so will not affect the appealable finality of the judgment originally entered. For the mere filing of an application for reargument of a motion for a new trial does not itself stop the running of the appeal period.*fn5 And the subsequent action of the court in again denying the motion for a new trial could not operate to stop the running of time which had already fully run. But if the court directs reargument of the motion for a new trial and thereby reinstates it within the appeal period the revived pendency of the original motion operates again to terminate the running of the time for appeal. In such case the appeal time will commence to run again and will be computed from the date of entry of the court's subsequent order denying the motion, if it is denied. Meanwhile the judgment which is the subject of the pending motion for a new trial must be regarded as lacking appealable finality.
In the case before us the district court directed reargument of the defendant's motion for a new trial*fn6 and thereby reinstated it within two days after the motion had been dismissed by it. As we have seen the original motion for a new trial was filed within the time limited by Rule 59(b). Having been reinstated for reargument it must still be regarded as having been so filed and must accordingly be given the effect of stopping the time for appeal while it remains pending and undetermined. Since the reinstated motion has not yet been denied by the court, the judgment appealed from must be regarded as still lacking appealable finality.
Accordingly the appeal will be dismissed.
BIGGS, Chief Judge (dissenting).
I think the judgment is an appealable one under Section 1291, Title 28 U.S.C., and that the decision of ...