Howard v. LOCAL 74, ETC., 10983.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: MAJOR, , and LINDLEY, Circuit
• Citation: 208 F.2d 930
• Parties: HOWARD et al. v. LOCAL 74, WOOD, WIRE AND METAL LATHERS INTERNATIONAL et al.
• Docket Number: No. 10983.,10983.
• Decision Date: 01 December 1953

208 F.2d 930 (1953)

HOWARD et al.
v.
LOCAL 74, WOOD, WIRE AND METAL LATHERS INTERNATIONAL et al.

No. 10983.

United States Court of Appeals, Seventh Circuit.

December 1, 1953.

208 F.2d 931

William R. Ming, Jr., Loring B. Moore, George N. Leighton, Chicago, Ill., for appellants.

Leo F. Tierney, Charles L. Stewart, Jr., Holland F. Flahavhan, Chicago, Ill., for appellees.

Before MAJOR, Chief Judge, and LINDLEY, Circuit Judge.

LINDLEY, Circuit Judge.

Defendants-appellees move to dismiss this appeal on the grounds that plaintiffs' first notice of appeal was not timely filed, and that a second notice of appeal filed pursuant to an order of the District Court is inefficacious because the court had no jurisdiction to extend the time for filing such notice.

Plaintiffs brought this action on behalf of themselves and others similarly situated seeking injunctive and other relief against an alleged conspiracy of defendants in violation of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1, 2. The

208 F.2d 932

complaint was dismissed on July 20, 1953. Plaintiffs filed a notice of appeal from the order of dismissal on August 21, 1953, 32 days after entry of the judgment. Thereafter plaintiffs filed a motion with the trial court for leave to withdraw their notice of appeal previously filed and for an extension of time for filing another notice of appeal to September 16, 1953. On the latter date, plaintiffs' motion was granted, the original notice of appeal withdrawn and a second notice of appeal filed. The only question before this court is whether the court below had jurisdiction to enter the order of September 16

Federal Rule of Civil Procedure 73(a), 28 U.S.C.A., provides that an appeal "shall" be taken within 30 days from the entry of judgment. The only exception to this limitation, here material, is that an extension of not to exceed 30 days may be granted "upon a showing of excusable neglect based on a failure" of a party to learn of the entry of a judgment. The time limitation for perfecting an appeal is expressly excluded from the general provisions of Rule 6(b) for enlargement of time "for cause shown" for actions "required or allowed to be done" within an express time limitation set by the Federal Rules or by order of a court. Also, "Lack of notice of the entry of a judgment by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a)." Federal Rule of Civil Procedure 77(d). Thus, it is clear that a lower court has jurisdiction to extend the time for appeal only if a basis for that jurisdiction is found within the express provisions of Rule 73 (a), viz., a showing of "excusable neglect based on a failure" of a party to learn of the entry of the judgment.

The courts have repeatedly held that compliance with the requirements of a statute permitting an appeal is jurisdictional, and that an extension of time may be granted only on satisfaction of the statutory provisions therefor. See, e. g., Old Nick Williams Co. v. United States, 215 U.S. 541, 30 S.Ct. 221, 54 L. Ed. 318; Credit Co. of London v. Arkansas Cent. R. Co., 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448; Ray v. Morris, 7 Cir., 170 F.2d 498; LeJeune v. Midwestern Ins. Co., 5 Cir., 197 F.2d 149; Mondakota Gas Co. v. Montana-Dakota Utilities Co., 9 Cir., 194 F.2d 705. As the Court of Appeals for the Sixth Circuit said in Marten v. Hess, 176 F.2d 834, at page 835, "It is fundamental that the time requirement within which an appeal must be taken is mandatory and jurisdictional. It can not be extended by waiver, or order of the court. If notice of appeal is not filed within the time provided, the right to appeal is lost."

Plaintiffs concede that the notice of appeal filed August 21 was not timely. They do not deny that they received timely notice of the entry of the judgment. They contend, however, that this is a class action; that the decision to take an appeal rested in part...