Brest v. Philadelphia Transportation Company, 12961
| Citation | 273 F.2d 22 |
| Decision Date | 22 December 1959 |
| Docket Number | 12962.,No. 12961,12961 |
| Parties | Robert BREST, Administrator of the Estate of Vincent Griscavage, Deceased, Appellant, v. PHILADELPHIA TRANSPORTATION COMPANY (Defendant and Third-Party Plaintiff), Lemuel B. Gallagher, Third-Party Defendant. Coleman F. MILLER, Administrator of the Estate of William Heffernan, Deceased, Appellant, v. PHILADELPHIA TRANSPORTATION COMPANY (Defendant and Third-Party Plaintiff), Lemuel B. Gallagher, Third-Party Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Robert M. Bernstein, Philadelphia, Pa. (Bernstein & Bernstein, Philadelphia, Pa., on the brief), for appellants.
H. Francis DeLone, Philadelphia, Pa. (Matthew J. Broderick, Philadelphia, Pa., on the brief), for Philadelphia Transportation Co.
Before BIGGS, Chief Judge, and GOODRICH and McLAUGHLIN, Circuit Judges.
We cannot reach the merits of these appeals on the instant record. The record in each case shows that motions for new trials were filed in both cases but they are not shown to have been served.
In No. 21,215 in the court below, No. 12,961 in this court, a judgment was entered on October 24, 1958, in favor of the Philadelphia Transportation Company, the original defendant and third-party plaintiff, and against it as a third-party plaintiff. The plaintiff-appellant, Brest, filed a motion for a new trial on October 29, 1958, within the time prescribed by Rule 59, Fed.R.Civil Proc., 28 U.S.C. The record is devoid of any showing of service of this motion as required by Rules 5 and 59. On November 26, 1958, Brest filed "Additional Reasons for a New Trial", as an alternative motion under Rule 60, asking to be relieved of his failure to include in his original motion for a new trial certain grounds germane to his appeal. The record also fails to show service of this motion as required by the rules.
What has been said in respect to the motions in the case in which Brest is the plaintiff-appellant is equally applicable to substantially similar motions made in Civil Action No. 21,503 in the court below, No. 12,962 in this court, where Miller is the plaintiff-appellant.
The court below denied all the motions referred to and appeals were taken to this court. These appeals are timely if the motions for new trials were served as required by the rules. See 28 U.S.C. § 1291. The point we raise sua sponte is that unless service was made as prescribed by the rules, the notices of appeals were not filed within the appeal period...
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