768 F.2d 140 (7th Cir. 1985), 84-2037, Exchange Nat. Bank of Chicago v. Daniels

Docket Nº:84-2037, 84-2232 and 84-2737.
Citation:768 F.2d 140
Party Name:EXCHANGE NATIONAL BANK OF CHICAGO, Plaintiff-Appellee, v. Harold DANIELS and Irene Daniels, Defendants-Appellants.
Case Date:July 12, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 140

768 F.2d 140 (7th Cir. 1985)



Harold DANIELS and Irene Daniels, Defendants-Appellants.

Nos. 84-2037, 84-2232 and 84-2737.

United States Court of Appeals, Seventh Circuit

July 12, 1985

Page 141

Narcisse A. Brown, Schwartz, Cooper, Kolb & Gaynor Chtd., Chicago, Ill., for plaintiff-appellee.

James B. Burns, Isham, Lincoln & Beal, Chicago, Ill., for defendants-appellants.

Before WOOD and EASTERBROOK, Circuit Judges, and DUMBAULD, Senior District Judge. [*]

EASTERBROOK, Circuit Judge.

Our decision in this case dismissed two of the three appeals as untimely, 763 F.2d 286. The third appeal, we held, brought up only the award of attorneys' fees, which we affirmed. The district court's judgment on the merits was entered on May 10, 1984, and appeal No. 84-2037 was filed on June 18. The decision to dismiss this appeal rested in part on a construction of a minute order of the district court filed on June 28, stating that the "time for filing notice of appeal is extended ten (10) days from May 10, 1984." This is a puzzling order, because the Danielses (the Borrowers) had 30 days from May 10 even without the order. But because the parties had not sought clarification of this order from the district court and had not argued its meaning in this court, we concluded that it did not make the notice of appeal filed June 18 timely. Before reaching this conclusion, we searched the record for any clue about of the order's meaning, particularly a contemporaneous explanation by the district court. We found none.

Page 142

After we decided the case, the Borrowers had the court reporter prepare a transcript of the proceedings before the district court on June 28. This transcript reveals that the district judge meant to grant an extension sufficient to permit a timely appeal. The judge stated that "if I gave you another 10 days, that takes you to June 19th, and you file[d] it on the 18th.... I think you are entitled to a 10-day extension from May 10th, because I think you are entitled to appeal." The Borrowers state in their petition for rehearing that the minute order was supposed to grant an extra ten days from June 10, rather than from May 10. So reconstructed, the order makes the notice of appeal in No. 84-2037 timely.

We are dismayed that the Borrowers' counsel did not bring the proceedings of June 28 to our attention in their brief on the merits. The two excuses they give--first that no one reads minute orders very carefully, second that "everyone knew" the meaning of the order and so did not think it necessary to elaborate--are not very persuasive. 1 The order in this case was a potential basis of jurisdiction. The Borrowers should have expected the court to read it carefully, even if they did not. And the judges of this court cannot know that "May 10" really means "June 10" unless the party relying on the order brings the necessary information to light. Almost all of the briefing on the jurisdictional issue was devoted to the question whether the judgment of May 10 was "final" and appealable; neither side paid any attention to the meaning of the order of June 28. It is more than a little discomfiting to learn, after disposing of all the grounds that had been presented for decision, that the effort was wasted.

Nonetheless, just as a court must notice a lack of jurisdiction even when raised for the first time in a petition for rehearing, so the court must decide on the merits any case of which it has jurisdiction, even when the ground of jurisdiction appears belatedly. We therefore take jurisdiction of appeal No. 84-2037. For the reasons stated in our opinion of May 29, 1985, however, appeal No. 84-2232 is untimely, and appeal No. 84-2737 presents only the question of fees. Our original...

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