Agostino v. Ellamar Packing Co.
| Citation | 191 F.2d 576 |
| Decision Date | 18 September 1951 |
| Docket Number | No. 13003.,13003. |
| Parties | AGOSTINO et al. v. ELLAMAR PACKING CO., Inc. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bailey E. Bell, Anchorage, Alaska, for appellants.
Plummer & Arnell, Anchorage, Alaska, for appellee.
Before HEALY, BONE and ORR, Circuit Judges.
Defendant-appellee filed a motion to docket the appeal in this case and then dismiss on the ground that the appeal was not filed within the time required by law and further that the order appealed from is not a final order. Appellants have petitioned this court for a rehearing from our order entered July 12, 1951 dismissing their first attempted appeal.
Judgment in this action was entered on April 12, 1951. Notice of appeal was filed on May 15, 1951. On motion of appellee this court on July 12, 1951, dismissed this appeal. Following this dismissal there was set for hearing in the district court appellants' motion to reconsider which appellants had filed in the district court on March 26, 1951 this being about two weeks before the entry of judgment. This motion was entitled: "Motion to Reconsider, and in the Alternative, Objections to Findings of Fact, Conclusions of Law and Judgment as Drawn, and Motion to Require Defendant to Submit Findings of Fact, Conclusions of Law and Judgment in Accordance with the Court's Memorandum Opinion." The district court denied this motion by a minute order entered August 2, 1951 which order referred to it as a motion for a new trial but which reference was corrected on August 3, 1951 to conform to the heading of the motion.
Appellants then filed a second notice of appeal on August 3, 1951 which notice recites that appellants are appealing from the final judgment overruling the motion for a new trial. It may be noted at this point that an appeal must be taken from the judgment and not from the denial of a motion for a new trial. Libby, McNeill & Libby v. Malmskold, 9 Cir., 115 F.2d 786.
It is appellants' contention that the motion to reconsider was in effect a motion for a new trial which extended their time for appeal under Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.C.A. We disagree. Even assuming that a motion for a new trial may be filed prior to the entry of judgment nevertheless under the facts of this case the motion to reconsider was nothing more than an argument on the law applicable to the case and every request made therein was in effect denied by the findings of fact, conclusions of law and...
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Mechanic Falls Water Co. v. Public Utilities Commission
...other grounds sub nom. Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25, 86 S.Ct. 153, 15 L.Ed.2d 21 (1965); Agostino v. Ellamar Packing Co., 191 F.2d 576 (9th Cir. 1951); Partridge v. Presley, 88 U.S.App.D.C. 298, 189 F.2d 645, cert. denied, 342 U.S. 850, 72 S.Ct. 79, 96 L.Ed. 642 (1951......
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Smith v. Insurance Company of North America
...then pending, citing Mosier v. Federal Reserve Bank of New York, 132 F.2d 710, 712 (2nd Cir., 1942); Agostino v. Ellamar Packing Co., Inc., 191 F.2d 576, 577, 13 Alaska 34 (9th Cir., 1951); 42 C.J., Motions & Orders, § 148, p. 511; 60 C.J.S. Motions & Orders § 38, p. 37 at notes 36-38. The ......
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Di Giovanni v. Di Giovannantonio
...Chafitz, 77 U.S.App.D.C. 38, 133 F.2d 384 (D.C.Cir., 1942); Green v. Reading Co., 180 F.2d 149 (3d Cir., 1950); Agostino v. Ellamar Packing Co., 191 F.2d 576 (9th Cir., 1951); Libby, McNeill & Libby v. Malmskold, 115 F.2d 786 (9th Cir., 1940); Ford Motor Co. v. Busam Motor Sales, 185 F.2d 5......
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Director of Revenue, State of Colorado v. United States, 9640.
..."regardless of what action was later taken by the court upon it." We are also cited the Ninth Circuit case of Agostino, et al. v. Ellamar Packing Co., 191 F.2d 576, 13 Alaska 34, wherein the court refused to give effect to a "Motion for Reconsideration" filed prior to final judgment, and th......