Dyotherm Corporation v. Turbo Machine Company, 18823.

Decision Date24 November 1970
Docket NumberNo. 18823.,18823.
Citation434 F.2d 65
PartiesDYOTHERM CORPORATION, Appellant, v. TURBO MACHINE COMPANY.
CourtU.S. Court of Appeals — Third Circuit

Norman N. Schiff, Newark, N. J., for appellant.

Robert B. Frailey, Paul & Paul, Philadelphia, Pa. (Henry N. Paul, Jr., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Plaintiff appeals an order of the district court, 48 F.R.D. 380, dismissing its complaint for lack of prosecution.

Defendant moves to dismiss the appeal on the ground that it is untimely. The district court's order was entered on December 29, 1969. No notice of appeal was filed within 30 days thereafter. However, within the succeeding 30 days plaintiff filed what amounted to a motion for an extension of time to file a notice of appeal. It alleged excusable neglect. On February 25, 1970, the district court extended the time to file a notice of appeal until March 6, 1970. To the extent the extension exceeded 30 days, i. e., beyond February 27, 1970, it was a nullity. F.R.App.P. 26(b). No formal notice of appeal was filed by February 27, 1970. The appeal must therefore be dismissed unless, as plaintiff contends, its application for an extension of time for filing a notice of appeal can itself be considered such a notice. We think it cannot. After all, the extension merely kept plaintiff's options open. It gave notice of its intent to appeal when it filed its untimely notice on March 4, 1970.

The appeal from the order of the district court will be dismissed.

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16 cases
  • Burdeshaw v. White
    • United States
    • Alabama Supreme Court
    • July 26, 1991
    ...on the merits. See Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146, [ (3rd Cir.) ] on remand, 48 F.R.D. 380, appeal dismissed, 434 F.2d 65 (2d Cir.1968). "In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be gran......
  • Snow v. Capitol Terrace, Inc.
    • United States
    • D.C. Court of Appeals
    • January 9, 1992
    ...with the motion to extend the time to appeal. Compare Selph v. Los Angeles, 593 F.2d 881 (9th Cir.1979), and Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65 (3d Cir.1970) with Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969). See also United States v. Jackson, 528 A.2d 1211, 1214 & n. 8 (D.......
  • Keller v. Petsock
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 11, 1988
    ...(motion for extension of time filed more than thirty days after expiration of appeal period invalid); Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65, 66 (3d Cir.1970) (per curiam ) (same). Because the district court lacked jurisdiction over the second appeal filed in that court, we simila......
  • Selph v. Council of City of Los Angeles
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 22, 1979
    ...extension of time. United States v. Stolarz, 547 F.2d 108, 112 (9th Cir. 1976). Smith v. United States, supra; Dyotherm Corp. v. Turbo Machine Co., 434 F.2d 65 (3rd Cir. 1970). Appellants argue that even though no notice of appeal was filed until after the expiration of the extension period......
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