Edwards v. Doctors Hospital
| Decision Date | 01 April 1957 |
| Docket Number | 24466.,24253,Docket 24263,24254 |
| Citation | 242 F.2d 888 |
| Parties | Evelyn EDWARDS, Plaintiff-Appellant, v. DOCTORS HOSPITAL, Inc., Seymour Wimpfheimer, Irving Somach and William Murphy, Defendants-Appellees. BERTHA BUILDING CORPORATION, Plaintiff-Appellant, v. NATIONAL THEATRES CORPORATION, Defendant-Appellee. GUMBINER THEATRICAL ENTERPRISES, Inc., Plaintiff-Appellant, v. NATIONAL THEATRES CORPORATION, Defendant-Appellee. HUBER BAKING COMPANY, Plaintiff-Appellant, v. STROEHMANN BROTHERS COMPANY and Quality Bakers of America Cooperative, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Irving Lemov, New York City, for plaintiff-appellant, Evelyn Edwards.
Galli & Locker, New York City (Lawrence J. McGinn, New York City, of counsel), for defendant-appellee, Doctors Hospital, Inc.
Martin, Clearwater & Bell, New York City (John J. De Luca, New York City, of counsel), for defendants-appellees Wimpfheimer and Somach.
Debevoise, Plimpton & McLean, New York City (Daniel W. West, New York City, of counsel), for defendant-appellee William Murphy.
Corcoran, Kostelanetz & Gladstone, New York City (Boris Kostelanetz, Arthur Karger and Jules Ritholz, New York City, of counsel), for plaintiffs-appellants, Bertha Building Corp. and Gumbiner Theatrical Enterprises, Inc.
Dwight, Royall, Harris, Koegel & Caskey, New York City (Frederick W. R. Pride, Charles F. Young and Stanley Godofsky, New York City, of counsel), for defendant-appellee, National Theatres Corp.
Appell, Austin & Gay, New York City (Cyrus Austin, New York City, of counsel), for plaintiff-appellant Huber Baking Co.
Nims, Martin, Halliday, Whitman & Williamson, New York City (John Dashiell Myers and Henry Temin, Philadelphia, Pa., and Carl B. Shelley, Harrisburg, Pa., of counsel), for defendant-appellee, Stroehmann Brothers Co.
Greenwald, Kovner & Goldsmith, New York City (Harold Greenwald and Harry Litwin, New York City, of counsel), for defendant-appellee Quality Bakers of America Cooperative, Inc.
Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.
In these three separate and distinct but companion cases, motions to dismiss the several appeals were argued before us on March 4, 1957. As each motion relates to a phase of the subject matter of Chief Judge Clark's opinion, written for a unanimous en banc court, in F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F.2d 889, we shall dispose of the three motions together.
Edwards v. Doctors Hospital, Inc. et al.
These are motions by various defendants-appellees to dismiss plaintiff's appeal for lack of timely service of the notice of appeal, and a cross motion by appellant for leave to file appellant's brief and appendix in the event of the denial of the motions to dismiss.
At the conclusion of plaintiff's case, Judge Byers granted the motions of appellees for a directed verdict on March 26, 1956, and the docket entry made on the same date reads:
On April 10th costs were taxed and Judge Byers signed a formal judgment, submitted by appellee William Murphy. As has happened in the past, there was a miscalculation of the time within which to serve the notice of appeal, due to the erroneous assumption that the time to appeal ran from the service of a copy of the formal judgment, with notice of the entry thereof, according to the practice in vogue in the New York State Courts.
The determination made by Judge Byers on March 26, 1956, followed by the docket entry, decided the case with finality. There was no occasion for him separately to pass upon the motions by defendants to dismiss the complaint as the dismissal followed as matter of law upon the direction of a verdict in favor of defendants.
Under our ruling in F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F.2d 889, and a long series of earlier cases cited therein, the notice of appeal, based upon a computation from April 10, came too late.
Another curious feature of the case is that after the time to appeal had fully expired, and there remained no possibility of giving our Court jurisdiction of the case, appellant made a motion on May 29, 1956, allegedly pursuant to Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for an extension of time within which to file an appeal to this Court, on the ground of "excusable neglect based on a failure of a party to learn of the entry of the judgment."
Since the judgment was final on March 26, the appellant had 30 days until April 25 to file his notice of appeal and an additional 30 days to petition the lower court for an extension of time under Rule 73(a) on a showing of excusable neglect. However, this time expired on May 25 and since Rule 73(a) is "mandatory and jurisdictional" and "can not be extended by * * * order of the court" (Marten v. Hess, 6 Cir., 176 F.2d 834, 835), Judge Inch's order on May 31 is a nullity and of no effect. Raughley v. Pennsylvania R. Co., 3 Cir., 230 F.2d 387; Howard v. Local 74, 7 Cir., 208 F.2d 930, 932; Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360.
Accordingly, we have no jurisdiction over this appeal and it is dismissed; and the cross-motion falls of its own weight.
Bertha Building Corporation v. National Theatres Corporation
In these consolidated cases Judge Galston filed an opinion on March 28, 1956, 140 F.Supp. 909, which would have been an unequivocal and definite determination of all the issues in favor of defendant, dismissing the complaint, except for the fact that he added "Settle orders."
The docket entry in each case reads:
On April 16, 1956, Judge Galston "settled" the orders by affixing his signature to a formal order dismissing each complaint with costs. The notice of appeal was filed on May 2, 1956.
The ruling in F. & M. Schaefer Brewing Co. v. United States, supra, followed by Matteson v. United States, 2 Cir., 240 F.2d 517 is (236 F.2d at page 891) that, to start the time to appeal running, there must be "some decisive and complete act of adjudication by the district judge * * * and notation thereof made in the civil docket." Here there was no such decisive act because of the words "Settle orders," at the end of the opinion. This well known formula has always indicated that something further is necessary, in the opinion of the trial judge, before his decision becomes definitive.
Such was the holding in U. S. v. Lucchese, decided without opinion by this Court on October 8, 1956. In that case Judge Inch, 149 F.Supp. 952, indicated in his opinion that he would grant a motion for summary judgment dismissing the complaint, without prejudice to the institution of another proceeding; but his opinion ended with the words, "Settle order." This Court, in a panel consisting of Judges Clark, Hand and Swan, held that the appeal was prematurely taken and should be dismissed, as no order was ever settled. See also United States v. Roth, 2 Cir., 208 F.2d 467, where we stated at page 470:
"District judges have it in their control to remove all doubt by making explicit and beyond misunderstanding their directions either for immediate judgment or for later settlement of a formal decree."
See also Scott v. Gearner, 5 Cir., 197 F.2d 93.
Accordingly, the motion to dismiss the appeals in these two consolidated ...
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...and should have been disallowed in their entirety. In support of its argument, plaintiff relies principally upon Edwards v. Doctors Hosp., Inc., 242 F.2d 888 (2d Cir. 1957), cert. denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761 (1958). There the question was, when did the time for appeal ......
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