Smith v. Jackson Tool & Die, Inc.

• Decision Date: 13 May 1970
• Docket Number: No. 27261.,27261.
• Citation: 426 F.2d 5
• Parties: John Curtis SMITH et al., Plaintiffs-Appellants-Cross Appellees, v. JACKSON TOOL & DIE, INC., et al., Defendants-Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

426 F.2d 5 (1970)

John Curtis SMITH et al., Plaintiffs-Appellants-Cross Appellees, v. JACKSON TOOL & DIE, INC., et al., Defendants-Appellees-Cross Appellants.

No. 27261.

United States Court of Appeals, Fifth Circuit.

May 13, 1970.

Bernard W. N. Chill, Jackson, Miss., for plaintiffs-appellants, cross appellees.

B. Stirling Tighe, W. Swan Yerger, Jackson, Miss., for defendants-appellees, cross appellants.

Before JOHN R. BROWN, Chief Judge, and JONES, Circuit Judge.

ON PETITION FOR REHEARING

PER CURIAM.

It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

Appellees are correct in their assertion that the Court failed to mention in its opinion of November 20, 1969, its ruling upon appellees' cross-appeal and motion to dismiss the appeal for lack of jurisdiction of this Court by reason of appellants' failure to timely take and perfect their appeal. Smith v. Jackson Tool & Die, Inc., 419 F.2d 152 (5th Cir., 1969). We now address ourselves to that issue.

The relevant portions of the proceedings below are as set out herein. After a trial without a jury, the District Court rendered its opinion adverse to the appellants on June 18, 1968, copies of which were received in the offices of all counsel for the parties on or about June 19, 1968. On June 16, 1968, Bernard Chill, counsel for the plaintiffs, had departed for Dublin, Ireland, to attend the International Bar Association Biannual Meeting. Chill was advised by telephone of the opinion and instructed his secretary to send a letter to the District Judge reading in part as follows:

"Mr. Chill is in Ireland attending the International Bar Association meeting and will return to the office on July 17th. He would appreciate it, I am sure, if you would withhold entering an order until he has had a chance to see the same, because I believe that it is his desire, and the desire of his clients, to perfect an appeal."

Copies of this letter were sent to counsel for appellees. In answer to this letter, B. Stirling Tighe, counsel for appellees, wrote the trial judge on June 20, 1968, stating in part

"While I would have no objection to a reasonable delay so as to permit Mr. Chill to examine a draft of the proposed order or judgment to be entered in the case, the defendants would be reluctant to agree to a delay of more than 30 days as indicated by Mr. Chill\'s letter."

On June 27, 1968, Tighe submitted a proposed judgment to the trial judge, copies of which were distributed to other counsel. Unknown to any of the parties or counsel, the District Judge signed the proposed judgment submitted by Tighe on July 3, 1968, and the same was entered on the Court's docket on that day. The Clerk of the Court inadvertently failed to furnish any notice of the judgment to any of counsel representing the parties in this action.

The fact that none of counsel had knowledge of the entry of the judgment is illustrated by the correspondence of respective counsel directed to the trial judge after the judgment had been entered regarding the proper form of judgment which should be entered by the Court. Upon return of appellant's counsel's from Ireland on July 17, 1968, he wrote the trial judge a note on July 22 making certain objections to the proposed judgment submitted by Tighe. This note stated in part:

"I have read your opinion which arrived after I had left my office on June 16th, and I have also read the judgment which Mr. Tighe has presented for entry."

In response to this letter, Tighe wrote the District Judge on July 24, 1968, closing said letter by saying

"* * * the judgment submitted adheres to the decision of the Court made upon a consideration of all issues of the case, and the same should, therefore, be entered as the judgment of the Court." (Emphasis added)

On September 5, 1968, three days after the final period for appeal had expired, Chill received a letter from Arlo Temple advising Chill that he had been informed by Tighe that the time for appeal in the present case had expired. This was the first time Chill had any knowledge that a judgment had been entered. Immediately thereafter, on September 6, 1968, Chill filed a motion to extend the time for appeal and a motion to vacate judgment, with affidavits stating that he had no prior knowledge of the entry of judgment. Tighe opposed the motion with a counter affidavit stating that his first knowledge that judgment had been entered was approximately two weeks prior to the filing of the motions above mentioned.

After a hearing, and on September 16, 1968, the trial judge granted the latter motion and vacated the judgment entered on July 3rd. Subsequently, on September 23, 1968, the Court entered a new judgment. The two judgments differed in the language used, but the results were the same. Appellants filed a motion to alter and amend judgment on October 3, 1968. On October 10, 1968, appellees filed a motion for attorney's fees. The motion to alter and amend was overruled on October 22, 1968, and appellants filed notice of appeal on November 18, 1968.

Appellees' contention in its motion to dismiss and cross-appeal is that the action of the District Court in vacating the...