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Plant Economy Inc. v. Mirror Insulation Co.


September 26, 1962


Author: Biggs

Before BIGGS, Chief Judge, and HASTIE and GANEY, Circuit Judges.

BIGGS, Chief Judge.

The defendant, Mirror, has filed a motion to docket and dismiss an appeal by the plaintiff, Plant, from a final judgment in defendant's favor. The motion alleges that the appeal was not taken within thirty days after the entry of the judgment as required by rule 73(a), Fed.R.Civ.Proc., 28 U.S.C., and that the order of the court below extending the period for taking the appeal was void and of no effect. Since the appeal has now been docketed*fn1, we consider only whether the appeal must be dismissed.

The judgment appealed from was entered on March 30, 1962, and, being final, was appealable. 28 U.S.C. § 1291. The notice of appeal was filed in the District Court on May 28, 1962. This was long after the expiration of the 30-day appeal period fixed by 28 U.S.C. § 2107 and Rule 73(a).*fn2

On May 8, 1962, however, Plant filed a motion, supported by affidavits, in the court below for an extension of the appeal period to May 29, 1962, on the ground that its failure to file a timely appeal was due to excusable neglect since it was not until May 3, 1962 that it learned of the entry of the judgment.*fn3 On May 8, 1962 without prior notice to Mirror of the filing of the motion or of any hearing in respect to it, the extension was granted and an order was entered. It recited that Plant's motion had been made "for good cause and that plaintiff's failure to [appeal] within the period originally prescribed was the result of excusable neglect". A copy of the order was mailed to Mirror on the same day and was received by it in due course.*fn4

The order of May 8, 1962 was ineffective to extend the appeal period. An extension of time for the taking of an appeal, granted ex parte after the expiration of the original appeal period, is inconsistent with provisions of Rule 6(b) and Rule 6(d).*fn5 Before the expiration of the original thirty-day period, the court could have extended the appeal period with or without motion or notice. But since no order extending the appeal period was made until after the thirty-day period had expired, the court was without authority to act ex parte. This was the conclusion reached in North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (9 Cir. 1952) based upon reasons which appear to us to be unassailable.*fn6 Cf. Swindell-Dressler Corp. v. Dumbauld et al., 308 F.2d 267(3 Cir. 1962). It follows that the appeal filed on May 29 was too late unless something done thereafter in the court below cured the infirmity.

On June 4 Mirror filed a motion in the court below to dismiss the appeal upon the ground that it had not been filed in time and that the ex parte order of May 8 was void and of no effect. This motion was heard, after notice to plaintiff, on June 25. During the argument the court acknowledged that it should have held a hearing before entering the order extending the period of appeal, but said that if its order was "void ab initio" as was held in North Umberland Mining Co. v. Standard Acc. Ins. Co., supra, then the filing of the notice of appeal was a nullity and was ineffective to divest the District Court of jurisdiction to proceed further in the case.*fn7 Accordingly, the court stated that it would rectify any possible error in the granting of the ex parte extension order by proceeding to hear counsel for both parties argue whether plaintiff's failure to take an appeal within the initial thirty-day appeal period was due to excusable neglect warranting an extension of the time to appeal. The court then found, as we have stated, that failure to appeal within the original thirty-day period was due to excusable neglect. It concluded the hearing by saying: "Gentlemen, submit an order that we deny defendant's motion for attorneys' fees*fn8, and that since defendant has shown excusable neglect, an appeal should be allowed in the Plant Economy decision."

No written order allowing an appeal out of time was made by the court below. The court spoke no words of such a kind as would suggest an intention on its part that its opinion should serve as an order. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 78 S. Ct. 674, 2 L. Ed. 2d 721 (1958). On the contrary the court by the very words quoted above made it plain that an order should be submitted by counsel.*fn9 No order remained on the record but the void order of May 8, 1962, entered ex parte. But even if the court below had entered a written order on June 25, 1962 purporting to allow Plant to appeal out of time it would have been without the jurisdiction, the power, to have entered a valid order of extension. The time limits prescribed by Rule 73(a) are precise and definite. It authorizes a trial court to "extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed." See note 2, supra. Final judgment was entered, as we have said on March 30, 1962. Eighty-seven days elapsed before the court below on June 25, 1962, indicated that it would extend Plant's time for taking its appeal. The court was then without power to enter a valid order of extension. It follows that nothing which was done after the filing of the appeal on May 29 cured its then existing infirmity of untimeliness.

The views which we have expressed make it unnecessary for us to consider whether the failure of the Plant to take an appeal was due to excusable neglect based upon its failure to learn of the entry of the judgment appealed from.

We recognize that the Federal Rules of Civil Procedure must be construed liberally to bring about a just, speedy and inexpensive determination of every action. Any requirement of compliance with barren technical formalities is to be avoided. But it cannot be denied that certain formalities are indispensable if litigation is to be just, speedy and inexpensive. This fundamental and most important objective can be achieved only by adherence to rather than rejection of the rules. Healy v. Pennsylvania R. Co., supra, 181 F.2d at pp. 934, 937.

Since notice of appeal was not filed until after the expiration of thirty days from the entry of the judgment appealed from, and no effective action was taken in the court below to extend the appeal period, we do not possess the power to entertain the appeal. Consequently, it will be dismissed for lack of jurisdiction.

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