Ainsworth v. Gill Glass & Fixture Co.

• Decision Date: 05 May 1939
• Docket Number: No. 6930.,6930.
• Citation: 104 F.2d 83
• Parties: AINSWORTH v. GILL GLASS & FIXTURE CO.
• Court: U.S. Court of Appeals — Third Circuit

104 F.2d 83 (1939)

AINSWORTH v. GILL GLASS & FIXTURE CO.

No. 6930.

Circuit Court of Appeals, Third Circuit.

May 5, 1939.

Harry Lea Dodson, of New York City, and Robert M. Barr, of Philadelphia, Pa., for appellant.

John W. Hallahan, of Philadelphia, Pa., and John M. Cole, of New York City (George F. Scull, of New York City, of counsel), for appellee.

Before MARIS, BIDDLE, and BUFFINGTON, Circuit Judges.

MARIS, Circuit Judge.

The appellee has moved to dismiss an appeal taken by the appellant from a final decree entered on December 21, 1938, in the District Court for the Eastern District of Pennsylvania. The motion is upon the ground that the appellant failed to comply with the requirements of Subdivision (g) of Federal Procedure Rule 73, 28 U.S.C.A. following section 723c, as to the filing of the record on appeal. Subdivision (g) of Rule 73 is as follows:

"(g) Docketing and Record on Appeal. The record on appeal as provided for in Rules 75 and 76 shall be filed with the appellate court and the action there docketed within 40 days from the date of the notice of appeal; except that, when more than one appeal is taken from the same judgment to the same appellate court, the district court may prescribe the time for filing and docketing, which in no event shall be less than 40 days from the date of the first notice of appeal. In all cases the district court in its discretion and with or without motion or notice may extend the time for filing the record on appeal and docketing the action, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or as extended by a previous order; but the district court shall not extend the time to a day more than 90 days from the date of the first notice of appeal."

In the present case the record was not filed with this court within 40 days, nor did the District Court within that period extend the time for filing it. However, on February 28, 1939, 63 days after the date of the notice of appeal, the District Court without notice or hearing entered the following order: "It is hereby ordered that Appellant's time for completing his appeal be extended to and including March 25, 1939."

The appellee argues that this order was not made within the period of 40 days and, therefore, the District Court had no authority to make it under Subdivision (g) of Rule 73. In reply to this argument the appellant calls our attention to the provisions of Subdivision (b) of Rule 6 which, he argues, conferred upon the District Court authority to make the extension out of time. The provisions of Subdivision (b) are as follows:

"(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 application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect; but it may not enlarge the period for taking any action under Rule 59 except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law."

It will be seen that this rule confers general authority upon the District Courts to enlarge periods of time fixed by the rules for the doing of acts required to be done by litigants. The filing of the record on appeal is such an act, and it would, therefore, appear that this rule would authorize the extension of the time for filing the record, the matter specifically provided for by Subdivision (g) of Rule 73. So far as concerns the extension of the...