In re D'Arcy, 8612.
| Decision Date | 28 April 1944 |
| Docket Number | No. 8612.,8612. |
| Parties | In re D'ARCY. |
| Court | U.S. Court of Appeals — Third Circuit |
Henry W. Parker, of New York City, for appellant.
Simon J. Griffinger, of Newark, N. J., for appellee.
Before MARIS, JONES, and GOODRICH, Circuit Judges.
The Morris Plan Industrial Bank of New York, the present appellant, filed in the district court for the District of New Jersey its petition to review an order of a referee granting the bankrupt his discharge. On June 18, 1943 the district court filed what was described as a "Memorandum" but which appears to have been the opinion of the court upon the question raised on the review. The memorandum ended, as is quite usual in the case of judicial opinions, with a sentence expressing in mandatory terms the conclusion of the court as to the disposition of the matter. The language was: "The order of discharge is affirmed." The paper, which was not signed by the district judge, was entered by the clerk of the district court in his docket under the date of filing with the notation: "Memorandum (Smith)". No order of the court was noted in the docket at that time or at any time thereafter prior to February 10, 1944. On the latter date the district court entered the following order:
"Ordered, that the petition for a review of the order of the Referee granting the Bankrupt his discharge, be and the same hereby is dismissed as of June 18th, 1943."
On February 19, 1944 the appellant took the present appeal which the bankrupt has moved to dismiss as not timely.
The Bankruptcy Act (sec. 25, sub. a, 11 U.S.C.A. § 48, sub. a), requires that appeals in bankruptcy "shall be taken within thirty days after written notice to the aggrieved party of the entry of the judgment, order or decree complained of, proof of which notice shall be filed within five days after service or, if such notice be not served and filed, then within forty days from such entry." Accordingly the present appeal was in time if the order of the district court was entered on February 10, 1944 but out of time if it must be deemed to have been entered on June 18, 1943. We think that no appealable order was entered by the district court until February 10, 1944 and that the appeal was timely.
In the federal courts an opinion is not a part of the record proper. England v. Gebhardt, 1884, 112 U.S. 502, 506, 5 S. Ct. 287, 28 L.Ed. 811. Consequently a statement in an opinion of the conclusion reached by the court, even though couched in mandatory terms, cannot serve as the order or judgment of the court. It is necessary that a definitive order or judgment be made and entered in the court's docket in due form. In Allegheny County v. Maryland Casualty Co., 3 Cir., 1943, 132 F.2d 894, 897, certiorari denied 318 U.S. 787, 63 S.Ct. 981, 87 L.Ed. 1154, we pointed out the vital importance of a court's judgment being clear and unambiguous. For similar reasons Civil Procedure Rule 79 (a), 28 U.S.C.A. following section 723c, requires that all orders and judgments of the district court in civil actions shall be noted in the...
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...to the judgment, is not an appeal from the order of judgment, and should be dismissed for lack of jurisdiction). In re D'Arcy, 142 F.2d 313, 315 (3d Cir.1944) ("A statement in an opinion of the conclusion reached by the court, even though couched in mandatory terms, cannot serve as the orde......
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