Fernandez v. Carrasquillo, No. 3964.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtMAHONEY, WOODBURY and PETERS, JJ
Citation146 F.2d 204
PartiesFERNANDEZ et al. v. CARRASQUILLO.
Docket NumberNo. 3964.
Decision Date18 December 1944

146 F.2d 204 (1944)

FERNANDEZ et al.
v.
CARRASQUILLO.

No. 3964.

Circuit Court of Appeals, First Circuit.

December 18, 1944.


146 F.2d 205

Luis Mercader, of Arecibo, Puerto Rico, for appellants.

B. F. Sanchez Castano, of San Juan, Puerto Rico, for appellee.

Before MAHONEY, WOODBURY and PETERS, JJ.

MAHONEY, Circuit Judge.

This action was brought in the Insular District Court of Arecibo for the annulment of summary mortgage foreclosure proceedings. The Supreme Court of Puerto Rico affirmed the judgment of the District Court sustaining a demurrer to the amended complaint and the plaintiffs have appealed.

The defendant moves to affirm on the ground that it is manifest from the record and the statement on appeal that the judgment below is neither "inescapably wrong" nor "patently erroneous," and, in the alternative, to dismiss the appeal for lack of jurisdiction on the ground that the notice of appeal has not been filed within three months after the entry of judgment, as provided for by statute. 28 U.S.C. § 230.

Since the motion to dismiss involves the jurisdiction of this court we proceed directly to a discussion of that question. The judgment below was entered on July 28, 1943. Although the Rules of the Supreme Court of Puerto Rico do not specifically provide for the filing of a petition for rehearing, the practice of that court has been not to send down its mandate until ten days from the rendition of judgment, and, if a petition for rehearing is filed within ten days, the court stays its mandate until the petition is disposed of. Fuentes v. Aponte, 62 P.R.R. ___ (June 5, 1944); Manrique v. Ramirez, 38 P.R.R. 482, 483; Schluter & Co. v. Gonzalez, 38 P.R.R. 224. In the instant case a Justice of the Supreme Court granted the plaintiffs an additional ten days to file a motion for reconsideration and ordered the mandate to be withheld until August 18. The plaintiffs filed their motion for reconsideration within the extended time on August 16, but as the court had already started its summer recess that motion could not be passed upon until the court reconvened November 1. On that date it was submitted, and by order of the court reconsideration was summarily denied on November 2, without a hearing or a written opinion. Eleven days later, on November 13, the plaintiffs filed their notice of appeal. The defendant contends that because the court denied reconsideration it did not "entertain" the motion, and that therefore the three months period is computed from the entry of judgment on July 28 and had elapsed by November 13.

It is well settled that when a petition for rehearing is seasonably presented and entertained by the court, the time limited for appeal does not begin to run until the petition is disposed of. Denholm & McKay Co. v. Commissioner, 1 Cir., 132 F.2d 243, 247. In that case the court said: "What is meant by `entertainment' of the petition for rehearing has not been entirely clear * * *. Apparently it means merely that the court considers on the merits the grounds urged in the petition for rehearing. See Texas Pacific Ry. Co. v. Murphy, supra, 111 U.S. 488, at page 489, 4 S.Ct. 497, 28 L.Ed. 492; United States v. Seminole Nation, supra 299 U. S. 417, 57 S.Ct. 283, 81 L.Ed. 316; Bowman

146 F.2d 206
v. Lopereno, 1940, 311 U.S. 262, 266, 61 S.Ct. 201, 85 L.Ed. 177; Payne v. Garth, 8 Cir., 1922, 285 F. 301, 309. When the published rules of the court permit the filing of a petition for rehearing within a stated period, that means that the court will ordinarily consider such petition on its merits, i. e., entertain it. Ortiz v. Public Service Commission, 1 Cir., 1940, 108 F.2d 815, 816; Warren v. Territory of Hawaii, 9 Cir., 1941, 119 F.2d 936, 938, 939. It is not requisite that the motion for rehearing be set down for argument." When the petition for rehearing is thus considered and disposed of on the merits it has been "entertained" by the court although the court may deny the petition without setting the case down for reargument and without any written opinion. Rule 32 of the Revised Rules of this court provides that "a petition for rehearing may be filed with the clerk within fifteen days (thirty days in appeals from Puerto Rico) after judgment is entered, unless the time is enlarged by order of the court." When such a petition is filed in accordance with the rules we consider it timely filed as a matter of right, and the petition is considered and disposed of on its merits. If we find that our decision is not erroneous in the light of the arguments advanced in the petition, we usually enter an order, "Petition for rehearing denied" without granting a reargument and without a written opinion. The United States Supreme Court treats the entry of such an order denying rehearing as "entertainment" of the petition, for it considers that it has jurisdiction of a petition for certiorari where that petition is filed within three months after the entry of our order denying the petition for rehearing.1

The Supreme Court of Puerto Rico took the same view of the matter until the legislature amended the civil code to require something more to constitute "entertainment" of a petition for rehearing. In Davila v. Collazo, 50 P.R.R. 475, the court held that the decision of this court in Sauri v. Sauri, 1 Cir., 45 F.2d 90, "has been accepted as authority * * * sustaining the proposition that the filing of a motion for reconsideration of a judgment * * * renews * * * the time for appeal so that it commences to be counted anew from the date on which consideration is denied. * * *" (Brackets supplied.) That court followed the Sauri rule reluctantly, remarked that the effect thus given to the filing of a motion for reconsideration "lends itself to dilatory tactics upon the part of losing litigants,"...

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3 practice notes
  • Papanikolaou v. Atlantic Freighters
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 9, 1956
    ...appeal in the meantime. We are in accord with the following passage from the opinion in Fernandez 232 F.2d 667 v. Carrasquillo, 1 Cir., 146 F.2d 204, "`When the published rules of the court permit the filing of a petition for rehearing within a stated period, that means that the court ......
  • Stewart v. Lincoln-Douglas Hotel Corp., No. 10916.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 1954
    ...& Pacific Tea Co., 4 Cir., 86 F.2d 296, 297; Curry v. Curry, 65 App.D.C. 47, 79 F.2d 172, 174; Fernandez v. Carrasquillo, 1 Cir., 146 F.2d 204, In attempting to avoid the consequences of having consented to the entry of the order of dismissal, the plaintiff insists that he did not autho......
  • Coughlin v. Regan, No. 84-2015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 25, 1985
    ...Hotel Corp., 208 F.2d 379, 382 (7th Cir.1953); Marks v. Leo Feist, Inc., 8 F.2d 460, 462 (2d Cir.1925); cf. Fernandez v. Carrasquillo, 146 F.2d 204, 208 (1st If plaintiff felt he had evidence by which to establish that the challenged part of the stipulated judgment had been entered by mista......
3 cases
  • Papanikolaou v. Atlantic Freighters
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 9, 1956
    ...appeal in the meantime. We are in accord with the following passage from the opinion in Fernandez 232 F.2d 667 v. Carrasquillo, 1 Cir., 146 F.2d 204, "`When the published rules of the court permit the filing of a petition for rehearing within a stated period, that means that the court ......
  • Stewart v. Lincoln-Douglas Hotel Corp., No. 10916.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 11, 1954
    ...& Pacific Tea Co., 4 Cir., 86 F.2d 296, 297; Curry v. Curry, 65 App.D.C. 47, 79 F.2d 172, 174; Fernandez v. Carrasquillo, 1 Cir., 146 F.2d 204, In attempting to avoid the consequences of having consented to the entry of the order of dismissal, the plaintiff insists that he did not autho......
  • Coughlin v. Regan, No. 84-2015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 25, 1985
    ...Hotel Corp., 208 F.2d 379, 382 (7th Cir.1953); Marks v. Leo Feist, Inc., 8 F.2d 460, 462 (2d Cir.1925); cf. Fernandez v. Carrasquillo, 146 F.2d 204, 208 (1st If plaintiff felt he had evidence by which to establish that the challenged part of the stipulated judgment had been entered by mista......

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