Howard v. LOCAL 74, ETC., 10983.

• Decision Date: 01 December 1953
• Docket Number: No. 10983.,10983.
• Citation: 208 F.2d 930
• Parties: HOWARD et al. v. LOCAL 74, WOOD, WIRE AND METAL LATHERS INTERNATIONAL et al.
• Court: U.S. Court of Appeals — Seventh Circuit

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.

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 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 On the latter date, plaintiffs' motion was granted, the original notice of appeal withdrawn and a second notice of appeal filed.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 with an unidentified association and other absent members of the class; that such absent members, without fault imputable to anyone, received no notice of the entry of judgment in time to perfect an appeal within the 30 day period, and that this brings plaintiffs within the "excusable neglect" exception to Rule 73(a). They argue, therefore, that the court below had jurisdiction to grant the extension of time.

The determinative question, therefore, is whether want of notice of the entry of a judgment in a class suit to all absent members of the represented class, when it appears that the representative parties received due notice, constitutes excusable neglect within the exception to the Rule which will permit a court to extend the time for perfecting an appeal. If so, is such want of notice present in the instant case? The trial court resolved both questions in the affirmative, and in so holding, we conclude, committed error.

Contrary to plaintiffs' contention, the trial court's decision was not based on a factual determination as to whether all necessary parties received notice of entry of judgment. Rather the transcript of proceedings reveals that an extension was granted summarily to bring the question to this court for decision. The court said: "I automatically grant an extension of time anyway. Things like that are complicated"; later, "I favor appeals. I favor giving the higher courts an opportunity to see whether I am right or not." To defendants' objection that the court was without jurisdiction, the court replied, "I will let the higher court decide that one too." Thus, we have no question as to whether the lower court's findings support the order, but are dealing with an order issued, expressly, to let "the higher court" decide the "complicated" question. Plaintiffs' verified motion filed in the trial court alleges that, because the court on the same day dismissed cases "in which the United States was a party", the plaintiffs believed that they "had 60 days to file Notice of Appeal" and that certain absent parties, notably the unidentified association, "by a stenographic error * * * did not know of the judgment of this court." The influence of each of these factors on plaintiffs' failure to file a timely notice is purely speculative and without legal significance.

The first is obviously without merit, and has been abandoned by plaintiffs. Assuming the...