De Jordan v. Hudspeth

Decision Date27 August 1943
Docket NumberNo. 2759.,2759.
PartiesDE JORDAN v. HUDSPETH, Warden.
CourtU.S. Court of Appeals — Tenth Circuit

John E. Fitzpatrick, of Denver, Colo., for appellant.

Eugene W. Davis, Asst. U. S. Atty., of Topeka, Kan., for appellee.

Before HUXMAN and MURRAH, Circuit Judges, and SAVAGE, District Judge.

MURRAH, Circuit Judge.

This is a motion to dismiss the appeal.

Appellant filed his petition for a writ of habeas corpus in the United States District Court for the District of Kansas on October 22, 1941, seeking to be released from the service of a life sentence for murder. The petition for the writ was heard November 29, 1941, and denied June 29, 1942.1

The appellant did not appeal from the order of the court denying the petition for the writ, but approximately eight months later, and on March 8, 1943, filed a motion for rehearing alleging (1) that at no time during the hearing was he advised of his constitutional right to the assistance of counsel and (2) new and vital evidence which was not available to him during the habeas corpus proceedings. On March 17, 1943, the court denied the motion for rehearing on the grounds that it was "filed long out of time" and was without merit. Appellant appeals from this order.

By not appealing from the order of the court denying the petition for the writ within the three months period granted by 28 U.S.C.A. § 230, or tolling such statutory period by filing a timely motion for new trial as provided by Rule 59(b) Rules of Civil Procedure,2 the appellant has lost his right to appeal from the order of June 29, 1942, denying the petition for the writ. Leishman v. Associated Wholesale Electric Company, 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. ___; Conboy v. First National Bank, 203 U.S. 141, 27 S.Ct. 50, 51 L.Ed. 128; Northwestern Public Service Company v. Pfeifer, 8 Cir., 36 F.2d 5, and Chicago, M. & St. P. Ry. Co. v. Leverentz, 8 Cir., 19 F.2d 915. Cf. Suggs v. Mutual Benefit Health & Accident Association, 10 Cir., 115 F.2d 80. Moreover, appellant has not appealed, or attempted to appeal, from the order dismissing the writ, but rather the appeal is from the order of the court denying the motion for rehearing, which is not an appealable order. 2 Amer. Jur. Appeal and Error, Section 102; Moore's Federal Practice Vol. 3, rule 59:03, page 3251-3252; Buffington v. Harvey, 95 U.S. 99, 100, 24 L.Ed. 381; Roemer v. Bernheim, 132 U.S. 103, 10 S.Ct. 12, 33 L.Ed. 277; Wayne Gas Company v. Owens Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557; Campbell v. American Foreign S. S. Corp., 2 Cir., 116 F.2d 926, 928; Marshall's U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140, and San Pedro & Company v. United States, 146 U.S. 120, 13 S.Ct. 94, 36 L.Ed. 911.

The appeal should be dismissed.

1 The record reveals that appellant was given seven months...

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5 cases
  • Hardison v. Dunbar, Civ. No. 9652.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • June 22, 1966
    ...proceedings (See: Poe v. Gladden, supra; Pledger v. United States, 6 Cir., 260 F.2d 471; and compare De Jordan v. Hudspeth, 10 Cir., 137 F.2d 943, cited with approval in Poe v. Gladden, II. Notwithstanding the failure of the instant motion as a "Motion for Rehearing," it may be argued that ......
  • United States v. DE JORDAN, Cr. No. 4515.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • November 10, 1949
    ...Kansas court. The Court of Appeals for the Tenth Circuit denied relief to petitioner in each instance. See DeJordan v. Hudspeth, 10 Cir., 137 F.2d 943, certiorari denied. De Jordan v. Hunter, 320 U.S. 779, 64 S.Ct. 87, 88 L.Ed. 468; DeJordan v. Hunter, 10 Cir., 145 F.2d 287, certiorari deni......
  • Thomas v. Hunter, 1158.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • July 8, 1948
    ...govern motions for new trials in habeas corpus proceedings. See Wade v. Hunter, D.C., 72 F.Supp. 755; De Jordan v. Hudspeth, 10 Cir., 137 F.2d 943; Moore's Federal Practice, 81.04, pp. 3426, 3427. I conclude that since there are no statutory enactments relating to motions for rehearings in ......
  • Poe v. Gladden, 16830.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 6, 1961
    ...order that Poe seeks to appeal. A district court order denying a petition for rehearing is not appealable. De Jordan v. Hudspeth, 10 Cir., 137 F.2d 943. This is likewise true with regard to procedural motions of the kind which were dealt with in the order of September 28, There is also anot......
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