Hill v. Hawes, 7844.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: STEPHENS, VINSON, and EDGERTON, Associate Justices
• Citation: Hill v. Hawes, 132 F.2d 569, 76 U.S.App.D.C. 308 (D.C. Cir. 1942)
• Decision Date: 12 October 1942
• Docket Number: No. 7844.,7844.
• Parties: HILL v. HAWES et al.

132 F.2d 569 (1942)

HILL v. HAWES et al.

No. 7844.

United States Court of Appeals for the District of Columbia.

Decided October 12, 1942.

Mr. Henry Lincoln Johnson, of Washington, D. C., for appellant.

Mr. John B. Gunion, of Washington, D. C., with whom Miss Katherine N. Hawes, of Washington, D. C., was on the brief, for appellees.

Before STEPHENS, VINSON, and EDGERTON, Associate Justices.

STEPHENS, Associate Justice.

This case was brought here on appeal from a decree of the District Court of the United States for the District of Columbia dismissing a complaint of the plaintiff below, the appellant here. On June 4, 1941, the appellee filed in this court a motion to dismiss the appeal upon the ground, among others, that it was not noted within time. On November 13 following, we denied this motion without prejudice to the appellee's right to renew the same, upon the single ground mentioned, at the argument on the merits. The motion was so renewed and was argued at the time of the argument on the merits. We think the motion to dismiss must be granted.

After the hearing below on the complaint and an amended answer, proposed findings of fact and conclusions of law were presented to the trial judge by each party on May 1, 1940. On May 7 the judge signed a judgment dismissing the complaint. This judgment was noted in the docket in compliance with Rule 79(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which requires the clerk of the District Court to keep a civil docket, and requires that all judgments shall be noted chronologically in the same and that the notation of a judgment shall show the date the notation is made. Rule 58 provides that the notation of a judgment in the civil docket as required by Rule 79(a) constitutes the entry of the judgment and that the judgment is not effective before such entry. Rule 10 of the rules of this court in effect until January 31, 1941, provided:

"No . . . judgment . . . of the District Court of the United States for the District of Columbia, or of any justice thereof, shall be reviewed by the Court of Appeals, unless the appeal shall be taken within 20 days after the . . . judgment . . . complained of shall have been made or pronounced. . . ."

That twenty day period expired May 27, 1940. No notice of appeal was filed in the District Court during that period, although one was filed on June 3. At the time of the entry of the judgment of dismissal on May 7 the clerk apparently did not send out the notice required by Rule 77 (d) of the Federal Rules of Civil Procedure. That rule provides:

"Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order is required by these rules; but any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers."

No note in the docket of the mailing of such a notice appears in the record before us, and it is without dispute in the case that no such notice was sent out. On June 6, notwithstanding the entry of the judgment of dismissal on May 7, the appellant filed a "Motion to Enter Judgment and Direct Clerk to Notify Parties." The motion stated as reasons that "the clerk of the court had failed to enter the day or month of the judgment of this court as is required by the rules of this court," and "that the clerk of this court has failed to notify the parties to this cause of the action of the court in this cause." This motion was not acted on until June 24, 1940, when the District Court denied it. But in the meantime, on June 13, the trial judge, apparently on his own motion, ordered the judgment of May 7 vacated "for the reason that the clerk failed under Rule 77(d) of the Rules of Civil Procedure to serve a notice of the entry of judgment by mail on the plaintiff . . . and to make a note in the docket of the mailing." On the same day, June 13, the trial judge signed and filed a second judgment in the same terms as the one of May 7. This judgment was noted in the docket. The appellant, treating this judgment of June 13 as the effective judgment in the case, filed a notice of appeal from it on June 14.

The question under the motion to dismiss is whether or not the appeal must have been taken within twenty days from the entry of the first judgment on May 7, or, putting it otherwise, was the trial judge warranted, because of the failure of the clerk to notify the parties of the entry of the judgment of May 7, in entering a second judgment, the one of June 13, and did the trial judge's action have the effect of extending the time for appeal, that is, of starting a second period of twenty days to run.

Three other rules of the Federal Rules of Civil Procedure are urged as pertinent: Rule 6(b) by the appellee; Rules 60(a) and 60(b) by the appellant. Rule 6(b) permits the trial court to enlarge time, but expressly states that "it may not enlarge . . . the period for taking an appeal as provided by law." Rule 60(a) provides:

"Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."

Rule 60(b) provides, so far as here pertinent:

"On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. . . ."

We are cited to no authority and find none construing the rules above referred to in respect of the particular point with which we are here concerned. We must therefore decide the question according to our best judgment as to the meaning of the rules as written.

We think that while the requirement of Rule 77(d) that the clerk immediately upon the entry of judgment shall serve a notice of the entry by mail upon the affected parties and make a note in the docket of the mailing of such notice should be complied with in every case, nevertheless the effectiveness of a judgment does not depend upon compliance with that requirement, but only upon notation in the civil docket as provided by Rules 58 and 79(a); and we think that the failure of the clerk to comply with Rule 77(d) did not warrant the District Court's setting the judgment aside. We think that the prohibition of Rule 6(b) against the District Court's enlarging the period for the taking of an appeal as provided by law is absolute. We think that Rules 60(a) and 60(b) are inapplicable. The omission of the clerk to mail...