Allen v. Schnuckle, 15542.
| Decision Date | 07 February 1958 |
| Docket Number | No. 15542.,15542. |
| Citation | 253 F.2d 195 |
| Parties | Joy ALLEN and Diana Allen, Steven Allen and Tracy Allen, Minors, by Their Guardian, ad Litem, Joy Allen, Appellants, v. Harold D. SCHNUCKLE, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter H. Anderson, Gus Carr Anderson, Pocatello, Idaho, Newel G. Daines, Logan, Utah, for appellants.
Wesley F. Merrill, A. L. Merrill, R. D. Merrill, Merrill & Merrill, Pocatello, Idaho, for appellee.
Before MATHEWS, HEALY and LEMMON, Circuit Judges.
On January 27, 1956, in the United States District Court for the District of Idaho, appellants, citizens of Utah, brought an action against appellee, a citizen of Idaho, for damages in the sum of $100,000. On August 3, 1956, appellants filed an amended complaint. On August 6, 1956, appellee filed a motion to dismiss the action on the ground that the amended complaint failed to state a claim upon which relief could be granted. The District Court granted appellee's motion and, on October 30, 1956, entered a judgment1 dismissing the action.
On November 7, 1956, appellants filed a motion for leave to amend the amended complaint.2 On November 9, 1956, appellants filed an amended motion for leave to amend the amended complaint.3 On February 18, 1957, the District Court entered an order denying the amended motion.
On March 21, 1957, appellants filed a notice of appeal. Thereby appellants took two appeals — one from an order said to have been entered on February 18, 1957, and one from a judgment said to have been entered on February 18, 1957. These appeals must be dismissed for the following reasons:
The only order entered on February 18, 1957, was the order denying the amended motion for leave to amend the amended complaint. That order was not a final decision, within the meaning of 28 U.S.C.A. § 1291, and was not appealable. No judgment4 was entered on February 18, 1957.
The only judgment ever entered was the judgment of October 30, 1956 — the judgment dismissing the action. That judgment was a final decision, within the meaning of 28 U.S.C.A. § 1291, and hence was appealable, but no appeal was taken therefrom.
Appellants contend that they appealed from the judgment of October 30, 1956, by filing the notice of appeal mentioned above. There is no merit in this contention. The notice of appeal did not mention or refer to the judgment of October 30, 1956. But, even if appellants had appealed from that judgment by filing that notice, such appeal would have to be dismissed for the following reasons:
The time for appealing from the judgment was not extended. None of the motions mentioned in Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., was made or filed. Hence the time for appealing from the judgment expired on November 29, 1956 — 30 days after October 30, 1956,5 and 112 days before the notice of appeal was filed.
Appellants contend that the amended motion of November 9, 1956, was a motion under Rule 59 of the Federal Rules of Civil Procedure to alter or amend the judgment; that the running of the time for appealing from the judgment was thereby terminated; and that such time did not thereafter commence to run until February 18, 1957, when the amended motion was denied.6 There is no merit in these contentions. As indicated above, the amended motion was a motion for leave to amend the amended complaint. It said nothing about altering or amending the judgment. But, even if it had been a motion to alter or amend the judgment, and even if it had terminated the running of the time for appealing from the judgment, and even if such time had not thereafter commenced to run until February 18, 1957, such time would have expired on March 20, 1957 — 30 days after February 18, 1957,7 and one day before the notice of appeal was filed.
As stated above, the notice of appeal was filed on March 21, 1957. However, appellants have filed in this court an affidavit stating, in substance, that the notice was delivered by one of their attorneys to an employee of the United States post office at Pocatello, Idaho, on March 20, 1957, for transmission and delivery to the clerk of the District Court at Boise, Idaho,8 and that it could and should have been delivered to the clerk on March 20,...
To continue reading
Request your trial
-
Houston v. Lack
...Southern University, 625 F.2d 521, 522 (CA5 1980); In re Bad Bubba Racing Products, Inc., 609 F.2d 815, 816 (CA5 1980); Allen v. Schnuckle, 253 F.2d 195, 197 (CA9 1958). But see In re Pigge, 539 F.2d 369 (CA4 1976) (adopting the mailbox rule). To the extent these cases state the general rul......
-
Lee v. State
...(recognizing the "`well-established' principle" that "deposit of notice in the mail is not equivalent to filing it"); Allen v. Schnuckle, 253 F.2d 195, 197 (9th Cir.1958) ("Delivery ... to a post office employee did not constitute a filing."); see also Charles Alan Wright & Arthur R. Miller......
-
Nigro v. Sullivan
...508, 60 L.Ed. 897 (1916) (rejecting a mailbox rule construction of "file" and concluding that receipt was required); Allen v. Schnuckle, 253 F.2d 195, 196-97 (9th Cir.1958)...
-
Vogelsang v. Patterson Dental Co.
...609 F.2d 815, 816 (5th Cir.1980) (applying Bankruptcy Rule 802(a), now Rule 8002(a), and discussing Rule 4(a)(1)); Allen v. Schnuckle, 253 F.2d 195, 196-97 (9th Cir.1958) (discussing 28 U.S.C. Sec. 2107). Cf. Monark Boat Co. v. NLRB, 708 F.2d 1322, 1329 (8th Cir.1983) (holding that an appli......