CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtHASTIE, FORMAN and SMITH, Circuit
Citation303 F.2d 716
PartiesJames A. GAINEY and J. L. Young, Individually and on Behalf of Others Similarly Affected, Appellants, v. The BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES and The Pennsylvania Railroad Company.
Docket NumberNo. 13896.,13896.
Decision Date25 May 1962

Lawrence J. Richette, Philadelphia, Pa., for appellants.

Robert M. Landis, Philadelphia, Pa., for Pennsylvania R. Co.

Allen S. Olmsted, 2d, Philadelphia, Pa., for Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.

Before HASTIE, FORMAN and SMITH, Circuit Judges.

HASTIE, Circuit Judge.

Rule 73, Federal Rules of Civil Procedure, 28 U.S.C.A., provides that the running of the time for appeal from a judgment of a District Court is terminated by the timely filing of any of certain designated types of post-judgment motions. The rule makes no specific mention of motions for rehearing or reconsideration. The present motion to dismiss an appeal requires us to consider the effect of a motion to reargue, following a granting of summary judgment, on the running of appeal time.

The procedural sequence in the court below was as follows:

On December 14, 1960, the court granted a motion of the defendants for summary judgment and entered a final order dismissing the action as to both defendants. On December 21, 1960, the plaintiffs filed a "Motion to Reargue Motions to Dismiss, In Accordance With Local Rule 34" of the District Court for the Eastern District of Pennsylvania.1 Other motions were filed at the same time. We do not discuss them because, if the motion to reargue did not toll the running of appeal time, none of the others did.

Supervening circumstances beyond the movants' control, among them the untimely death of the trial judge after he had heard argument on the postjudgment motion but before he could decide it, delayed disposition of this matter for almost a year. On December 1, 1961, after a second argument of the motion, the court entered a dispositive order that "the motion to reargue is denied and the order of Judge Egan, entered December 14, 1960, is adopted and reaffirmed in toto". On December 26, 1961, the plaintiffs filed their notice of this appeal, stating that they appealed from the order of December 1, 1961.

It is understandable that counsel regarded the order of December 1, 1961, with its reaffirmation of the final order of December 14, 1960, as a new final order. However, we think that technically the order of December 14, 1960, remained the effective judgment, particularly since the subsequent order actually denied rehearing. In the circumstances we think we should and we do treat the appeal as taken from the order of December 14, 1960. Cf. United States v. Ellicott, 1912, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535. Thus, the decisive issue is whether the motion for reargument filed seven days after entry of the final order of December 14, 1960, stopped the running of appeal time.

Rule 73 provides that "the running of the time for appeal is terminated by a timely motion" made pursuant to any of certain enumerated rules, including "granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59". Rule 59 has been properly described as "an amalgamation of the motion for new trial at common law and the petition for rehearing in equity adapted to the unified procedure * * *." 6 Moore, Federal Practice (2d ed. 1953) ¶ 59.02, at 3707. Of course, technically there is no trial when summary judgment is granted. But even before Rule 59 was amended in 1946 to add subsection (e), specifically providing for motions to alter or amend a judgment, the original provision of the Rule authorizing a party to move for a new trial within ten days after judgment was construed by several courts as broad enough to include motions for reconsideration of orders finally disposing of actions before trial. Jusino v. Morales & Tio, 1st Cir. 1944, 139 F.2d 946; Safeway Stores,...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 2, 1970 one filed under Southern District Rule 9(m) rather than Fed.R.Civ.P. 59(e). See Gainey v. Brotherhood of Ry. & S. S. Clerks, etc., 303 F.2d 716, 718 (3d Cir. The ten-day period expired on December 3, 1966, a Saturday. However, Fed. R.Civ.P. 6(a) provides that if the last day of any perio......
  • National Corn Growers Ass'n v. Baker, 85-08-01151.
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    • November 26, 1985
    ...& A. Miller, Federal Practice & Procedure § 2804 at 35 (1973). It is claimed in Gainey v. Brotherhood of Railway & Steamship Clerks, 303 F.2d 716, 718 (3d Cir.1962), that courts "have experienced no difficulty in concluding that a motion for rehearing or reconsideration made ... after the e......
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    ...Corp. v. Norwalk, 420 F.2d 858, 859 (CA3 1970) (motion to vacate judgment); Gainey v. Brotherhood of Railway & Steamship Clerks, 303 F.2d 716, 718 (CA3 1962) (motion for rehearing or reconsideration). Sometimes the characterization has resulted in the dismissal of an appeal. 8. E.g., Dove v......
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