Crump v. Hill

Decision Date24 May 1939
Docket NumberNo. 9053.,9053.
PartiesCRUMP v. HILL.
CourtU.S. Court of Appeals — Fifth Circuit

W. W. Venable, of Clarksdale, Miss., and Robert N. Somerville, of Cleveland, Miss., for appellant.

F. H. Montgomery, of Clarksdale, Miss., and J. C. Roberts, of Cleveland, Miss., for appellee.

Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

What is in question here is whether though no notice of appeal was actually filed in time, the filing with the Clerk before the appeal time had run of waiver of service of notice of and entry of an appearance to an appeal, together with a designation of the record on appeal by both appellant and appellee, perfected, and gave this Court jurisdiction of, the appeal. Appellee, urging that an actual filing of the notice of appeal required by Rule 73 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, within the time allowed for filing it is jurisdictional and therefore may not be waived, insists that the appeal should be dismissed for want of such filing. Appellant, urging that the filing of the waiver of service of notice of, and entry of appearance to, the appeal makes any other filing of notice unnecessary and that to grant the motion would be a sticking in the bark of form and a denial of substantial justice, insists that the motion should be denied.

This is the record. On October 27, 1938, judgment went against appellant. On December 22, 1938, he procured from appellee her written acknowledgment of service of notice of appeal and of designation of record on appeal and her entry of appearance,1 and on the same day filed it together with designation of record and transcript of testimony with the Clerk. On January 2, 1939, appellee prepared and filed with the Clerk her designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal. On February 21st, appellant's counsel, advised, as he states in his brief, by the Clerk of this Court that the record should contain a notice of appeal, filed with the Clerk of the Court below a notice of appeal as follows:

"To Hon. Fred H. Montgomery, of Attorneys for Mrs. Ivy G. Hill, Defendant, Clarksdale, Miss.

"Notice is hereby given that C. H. Crump, plaintiff, above named, hereby appeals to the Circuit Court of Appeals for the Fifth Circuit, from the final judgment against him entered in the above action.

"W. W. Venable Of Attorneys for plaintiff.

"Filed: This 21st day of February, 1939. Hubert D. Stephens, Jr., Clerk, By M. A. Cook, D. C."

Appellee insists that the notice of appeal required by Rule 73 has but taken the place of the allowance of appeal formerly required and that, as under the former practice, application for and allowance of an appeal within the three months was jurisdictional, Kiehn v. Dodge County, 8 Cir., 19 F.2d 503, Robie v. Hart, Schaffner & Marx, 8 Cir., 40 F.2d 871, Donaldson v. Baltimore Acceptance Corp., 3 Cir., 38 F. 2d 215, Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780, so the filing of the notice of appeal is jurisdictional here.

Appellant on his part insists that since under the new Rules no application to or order of the District Judge is required for an appeal, but an appeal is a matter of right, and only the filing of notice is necessary to start it, it will not do to press the analogy here between appeal by notice, and appeal by application and allowance, to the point of insisting that one is the equivalent of the other, and that as the application for, and the granting of, an appeal cannot be waived, the filing of notice under Rule 73 cannot be. Admitting that the actual filing of notice is jurisdictional, where the appellee had not as here waived the notice and entered her appearance, he insists that what has occurred here is the...

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33 cases
  • Griggs v. Provident Consumer Discount Company
    • United States
    • United States Supreme Court
    • November 29, 1982
    ...Mumbo Jumbo, and that the failure to comply formalistically with it defeats substantial rights.' " 488 F.2d, at 45, quoting Crump v. Hill, 104 F.2d 36, 38 (CA5 1939). Because respondent filed an effective notice of appeal, the Court of Appeals was compelled to reach the merits of the appeal......
  • Snyder v. Buck
    • United States
    • United States Supreme Court
    • November 13, 1950
    ...at page 730; Marten v. Hess, supra, 176 F.2d at page 835; St. Luke's Hospital v. Melin, supra, 172 F.2d at page 533. Compare Crump v. Hill, 5 Cir., 1939, 104 F.2d 36, with Piascik v. Trader Navigation Co., 2 Cir., 1949, 178 F.2d 4. Accord, Nudelman v. Globe Varnish Co., 1941, 312 U.S. 690, ......
  • Hadjipateras v. PACIFICA, SA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 15, 1961
    ...of a notice of appeal. Roth v. Bird, 5 Cir., 1956, 239 F.2d 257, 259; Des Isles v. Evans, 5 Cir., 1955, 225 F.2d 235, 236; Crump v. Hill, 5 Cir., 1939, 104 F.2d 36, 38; Carter v. Campbell, 5 Cir., 1960, 285 F.2d 68, 70-71.9 We have followed this pattern as we seek to utilize this new remedy......
  • Cobb v. Lewis
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 9, 1974
    ...of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal. In Crump v. Hill, 5 Cir. 1939, 104 F.2d 36, for example, we refused to dismiss an appeal for failure to file a notice of appeal under F.R.Civ. P. 73(a), the predecessor of ......
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