Files v. City of Rockford, 18234.

Decision Date08 March 1971
Docket NumberNo. 18234.,18234.
Citation440 F.2d 811
PartiesJames M. FILES, Arlene Magnuson, Leonard Green & George Didier, Plaintiffs-Appellants, v. CITY OF ROCKFORD, City of Rockford Board of Election Commissioners, Andrew J. Doyle, Marshall R. Wedman & Richard A. Reese, as members of the Board of Election Commissioners, John A. Anderson, Alderman 6th Ward, City of Rockford, Benjamin T. Schleicher, Mayor of Rockford, Phillip Reinhard, State's Attorney, County of Winnebago, and Richard H. Lyford, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

William E. Schirger, Knight, Ingrassia & Schirger, Rockford, Ill., for plaintiffs-appellants.

William J. Scott, Atty. Gen., Donald J. Veverka, Asst. Atty. Gen., Chicago, Ill., Philip G. Reinhard, Stanley H. Guyer, Rockford, Ill., for defendants-appellees; Francis T. Crowe, Asst. Atty. Gen., of counsel.

Before KILEY, PELL and STEVENS, Circuit Judges.

PELL, Circuit Judge.

This is an appeal by the plaintiffs from the district court's dismissal of their amended four count complaint.

Counts I, II and III alleged generally that certain violations of the Illinois Election Code occurred during the city election held in Rockford, Illinois on April 1, 1969. The alleged violations, as well as other alleged improprieties in connection with the election, are charged to most of the defendants in their capacities as various officials of the City of Rockford. Jurisdiction is claimed under 28 U.S.C. § 1343 based on alleged violations of 42 U.S.C. §§ 1983, 1985 and 1986.

Count IV is by the plaintiff, Didier, against the defendant Reinhard, State's Attorney of Winnebago County, Illinois, and defendant Lyford, successful aldermanic candidate in the challenged election. Didier seeks an injunction against pending state prosecution brought against him for a claimed violation of Illinois Revised Statutes, Chapter 46, § 26-1 (1967).

The threshold contention of the defendants is that this court is without jurisdiction to entertain the appeal because notice of appeal was not timely filed by the plaintiffs.

The factual situation with regard to this question is as follows.

The order dismissing the complaint in this cause was entered October 6, 1969 in open court. All parties were present in court by counsel. There is no contention that the clerk failed to give notice of the entry of said order to attorneys for all parties. See Rule 77(d), Fed.R. Civ.P.

On November 10, 1969, the plaintiffs, with advance notice to the defendants, filed their motion for an order extending the time for filing the record and docketing the appeal in the office of the clerk of this court to and including December 5, 1969. The motion stated that the reason for the requested extension was "that there are numerous parties involved in this case and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * *" On November 14, 1969, the district court extended the time for docketing the record on appeal to December 5, 1969. No request was made in the motion filed on November 10, 1969 for an extension of time within which to file the notice of appeal although more than thirty days had expired since the entry of the order of dismissal from which presumably plaintiffs intended to appeal.

On December 4, 1969, plaintiffs, again with advance notice to defendants, filed their motion, moving the court to vacate its order of November 14, 1969 and enter an order extending the time for filing the record and docketing the appeal in the cause to and including January 30, 1970 and for leave to file instanter their notice of appeal.

The only reference in the motion to a reason in support thereof was the following statement, "The reason for the requested extension is that there are numerous parties involved in this case and that there are attorneys from Chicago, Northern Illinois, and Indiana, working on this case and it is difficult to make arrangements for the scheduling of briefs and conferences, * * *" The motion contained no supporting reasons in terms for permitting the filing of the notice of appeal on an instanter basis.

Although the district court's memorandum order of December 4, 1969, in response to plaintiff's motion, contained only the words "Enter order," apparently the motion was granted as prayed. No indication was given therein of any reason supporting permission for instanter filing of the notice of appeal.

On February 17, 1970, the defendants filed in this court their motion to dismiss the appeal on the ground that no excusable neglect had been shown pursuant to Rule 4(a), Fed.R.App.P., and that therefore notice of appeal was not timely filed.

A single judge of this court denied the motion at the time and the matter presented by the motion to dismiss, as well as other points raised on the appeal, were briefed and heard by a regular three judge panel of this court.

Rule 3(a), Fed.R.App.P., provides in part as follows:

"An appeal permitted by law as of right from a district court to a court of appeals shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal." (Emphasis supplied.)

Rule 4(a), Fed.R.App.P., provides that the notice of apeal required by Rule 3 shall be filed with the clerk of the district court within thirty days of the date of the entry of the judgment order appealed from. This rule also provides the following:

"Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate." (Emphasis supplied.)

Rule 4(a), Fed.R.App.P., which was effective July 1, 1968, was, according to the Advisory Committee's note, derived from Rule 73(a), Fed.R.Civ.P., without any change of substance.

The history of the development of rules pertaining to the time of appeal is traced in 9 Moore's Federal Practice ¶ 203.21 et seq. (2d ed. 1970). The original Rule 73 as promulgated in 1937 contained no time limitation, that being regulated at the time in the case of civil appeals by statute. In 1946, Rule 73(a) was amended to include the present thirty days which shortened the time formerly allowed for most appeals. The amendment also provided, "* * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed." Id., ¶ 203.24 2, at 773.

In the 1966 amendment the phrase "based upon a failure of a party to learn of the entry of the judgment" was eliminated. According to the committee note, this "empowers the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result." (Emphasis supplied.) Id., ¶ 203.253, at 783.

Compliance with the time requirement on appeal has repeatedly been held to be mandatory and jurisdictional and if notice is not filed within the time provided, the right to appeal is lost. Howard v. Local 74, 208 F.2d 930, 932 (7th Cir. 1953). See also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); and Winchell v. Lortscher, 377 F.2d 247 (8th Cir. 1967).

Rule 73 was intended to expedite appeals and guard against dilatory tactics and should be liberally construed to accomplish this purpose. However, an extremely important provision of Rule 73(a) "makes only the timely filing of the extremely simple notice of appeal a `jurisdictional' step." 3A Barron & Holtzoff-Wright, Federal Practice & Procedure § 1551, at 54 (1961).

The basic rationale for insistence upon timely filing is the necessity for providing a precisely ascertainable point of time at which litigation comes to an end.

An apparent exception to strict application in this area is found in what has been termed "unique circumstances." This is discussed in 4 Wright & Miller, Federal Practice & Procedure § 1168, at 636 (1969). The principle of unique circumstances in connection with appeal time was first enunciated by the Supreme Court in the case of Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). Other cases reaching a similar result, including Eady v. Foerder, 381 F.2d 980 (7th Cir. 1967), are discussed in 4 Wright & Miller, supra, § 1168. An examination of the cases, however, indicates that the unique circumstances concept is based on a theory similar to estoppel. Thus in Harris, the appellant requested and received an extension of time before the expiration of the original time in which to file the notice of appeal. If the extension had been denied he could still have filed the simple notice of appeal. The Supreme Court held that having relied upon the trial judge's finding of excusable neglect prior to the expiration of the thirty day period, he should not suffer reversal of the finding on appeal. The record,...

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