Kahler-Ellis Company v. Ohio Turnpike Commission, 12634.
Decision Date | 12 September 1955 |
Docket Number | No. 12634.,12634. |
Citation | 225 F.2d 922 |
Parties | KAHLER-ELLIS COMPANY, etc., Appellant, v. The OHIO TURNPIKE COMMISSION and the Ohio National Bank, Appellees. |
Court | U.S. Court of Appeals — Sixth Circuit |
William Ammer, Circleville, Ohio, Edward N. Barnard, Detroit, Mich., for appellant.
Squire, Sanders & Dempsey, Cleveland, Ohio, Frank C. Dunbar, John Caren, Columbus, Ohio, for appellees.
Before STEWART, Circuit Judge.
This cause came on to be heard on appellee's motion to dismiss the appeal on the ground that this court is without jurisdiction to hear the appeal because notice of appeal was not timely filed.
Judgment was entered June 2, 1955. On July 2, counsel for appellant deposited the notice of appeal in the mails. The clerk of court received the notice on July 5.
Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that notice be filed within thirty days of the entry of judgment. Here, only the act of depositing the notice in the mails occurred within thirty days. This is not a filing; only when the clerk acquires custody has it been filed. Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915; Lejeune v. Midwestern Ins. Co., 5 Cir., 1952, 197 F.2d 149; see also Gradsky v. Commissioner, 6 Cir., 1954, 218 F.2d 703. Since the notice of appeal is jurisdictional, the motion to dismiss must be granted. Marten v. Hess, 6 Cir., 1949, 176 F. 2d 834.
It is, accordingly, ordered that the appeal in the above case be and the same is hereby dismissed.
To continue reading
Request your trial-
Rothman v. U.S., 74-1240
...1972).17 Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955).18 F.R.App.P. 25(a). See Kahler-Ellis Co. v. Ohio Turnpike Comm'n, 225 F.2d 922 (6th Cir. 1955); LeJeune v. Midwestern Life Ins. Co., 197 F.2d 149 (5th Cir. 1952).19 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 7......
-
Banner Bank v. Robertson (In re Robertson)
...filing[.] . . . [F]iling requires delivery and receipt by the proper party." (citations omitted)); Kahler-Ellis Co. v. Ohio Tpk. Comm'n, 225 F.2d 922, 922 (6th Cir. 1955) (depositing a document in the mail "is not a filing; only when the clerk acquires custody has [a document] been filed" (......
-
Lobato v. Pay Less Drug Stores
...Co., 10 Cir., 169 F.2d 166; Lejeune v. Midwestern Insurance Company of Oklahoma City, 5 Cir., 197 F.2d 149; Kahler-Ellis Co. v. Ohio Turnpike Commission, 6 Cir., 225 F.2d 922. The judgment dismissing the action as to the defendants Cohen, Grady, and Finke was entered on September 25, 1957, ......
-
City of Chicago v. U.S. Dept. of Labor
...actual custody of the document. Graves v. General Insurance Corp., 381 F.2d 517, 519 (10th Cir.1967); Kahler-Ellis Company v. Ohio Turnpike Commission, 225 F.2d 922 (6th Cir.1955). When this Court's Clerk accepted the petition and stamped it received on February 3, the petition was timely f......