Chathas v. Smith, 87-2821
| Decision Date | 01 June 1988 |
| Docket Number | No. 87-2821,87-2821 |
| Citation | 848 F.2d 93 |
| Parties | , 11 Fed.R.Serv.3d 593 Alice CHATHAS and Byron Ellis, Plaintiffs-Appellants, v. Norbert SMITH, individually and as Chief of Police of Village of Evergreen Park, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Leonard M. Ring, Leonard M. Ring and Assoc., Chicago, Ill., for plaintiffs-appellants.
Iris E. Sholder, Asst. State's Atty., Richard M. Daley, State's Atty., Lynn D. Dowd, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Michael G. Bruton, Pretzel & Stouffer, Chartered, Chicago, Ill., for defendants-appellees.
Before CUDAHY, POSNER and COFFEY, Circuit Judges.
We have before us a motion by the appellants in a civil rights case to amend the notice of appeal. The appellees contend that a court of appeals has no power to amend a notice of appeal. This court has not addressed the question before.
On November 9, 1987, the appellants, who were the plaintiffs in the district court, filed in that court their notice of appeal, which stated that they were appealing from the "order of May 4, 1987, granting defendants CAINKAR, KLOMHAUS, BERGMAN, SMITH, ROSS, RUFFALO, DICARLO and CHMIELEWSKI directed verdicts, and the order of October 9, 1987, denying plaintiffs' post-trial motion." The May 4 order had also directed a verdict for defendant Thomas Evoy, but the notice of appeal did not mention his name. On March 29 of this year the appellants filed with us a motion for leave to file an amended notice of appeal, identical to the notice of November 9 except that it adds Evoy's name. The appellees plus Evoy, all of whom are represented by the same lawyer, have filed a statement opposing the motion.
Rule 3(c) of the Federal Rules of Appellate Procedure, which prescribes the contents of the notice of appeal, requires the notice to specify the appellant; the judgment, order, or part thereof appealed from; and the court to which the appeal is taken. There is no mention of appellees; nor does the sample notice of appeal in the Forms Appendix mention naming the appellees. Naming them might, however, be the means of specifying the part of the order appealed from. For example, the appellants appear to have dropped their case against the Village of Evergreen Park and are confining the appeal to the case against the police chief and other employees of the village who were also defendants in the district court. If the omission of Evoy's name misled Evoy or the other defendants and by doing so harmed him or them, sanctions might be in order, including dismissal of the appeal insofar as it seeks to reverse the judgment in his favor. But there is no suggestion that anyone was misled by the omission.
Nevertheless, the question remains whether this court--a court of appeals--has authority to amend, or allow the appellants to amend, a notice of appeal, which is a document filed in the district court rather than in this court; if not we must deny the motion. Trivette v. New York Life Ins. Co., 270 F.2d 198 (6th Cir.1959) (per curiam), holds that an appellate court lacks the authority, but gives no reasons. The other cases we have found--including a later case in the Sixth Circuit that does not cite Trivette--allow technical errors in the notice of appeal to be corrected by a motion to file an amended notice, but do not discuss the issue of jurisdiction. See Preble v. Johnson, 275 F.2d 275, 277 (10th Cir.1960); Wyse v. Pioneer-Cafeteria Feeds, Ltd., 340 F.2d 719, 725 (6th Cir.1965); Harrison v. United States, 715 F.2d 1311 (8th Cir.1983) (per curiam). Preble is illustrative. The appellant's motion to amend his notice of appeal to correct an erroneous date was met by the appellees' motion to dismiss the appeal itself for want of jurisdiction, because of the error; and the court, stating correctly that a notice of appeal is not invalid merely because of a technical mistake, see, e.g., United States v. Patel, 835 F.2d 708, 710 (7th Cir.1987); Matarese v. LeFevre, 801 F.2d 98, 105 (2d Cir.1986), denied the appellees' motion and granted the appellant's. The latter step was redundant, since by denying the motion to dismiss the appeal the court necessarily held that the...
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