Kyle v. Wiley, 1006.
| Decision Date | 16 February 1951 |
| Docket Number | No. 1006.,1006. |
| Citation | 78 A.2d 769 |
| Parties | KYLE v. WILEY. |
| Court | D.C. Court of Appeals |
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Judges.
This appeal is from an order dismissing an amended complaint and our first question is whether the appeal was timely taken. The question arises from the following circumstances. A motion to dismiss the amended complaint, having been previously denied, was reheard and taken under advisement by the trial court. On October 6 the motion was granted and entry to that effect made in the docket. On October 7 notice of the court's action was mailed to the parties. October 8 was a Sunday and appellant's counsel probably received notice on October 9. Notice of appeal was filed on October 18.
This court's rule 27(a) requires that notice of appeal in civil cases be filed within ten days "from the date of the judgment or order appealed from", and we have held that this time limit is jurisdictional and cannot be extended.1 Date of judgment or order, as used in our rule, means its effective date. Rule 52 of the trial court provides that notation of a judgment in the civil docket constitutes entry of judgment and that the judgment is not effective before such entry. That rule makes no reference to a final order, as distinguished from a judgment, but is probably broad enough to include a final order. By analogy at least, the effective date of a final order is the date it is noted in the docket. Thus the effective date of the order now under consideration was October 6 and if the ten days allowed for taking an appeal ran from that date, the notice filed October 18 was too late.
Two other rules must be considered. The trial court's rule 66(d) provides: * * *"
Our rule 10(b) provides: "Whenever a party has the right or is required to act or proceed within a prescribed period after service of a notice or other paper upon him and such notice or paper is served by mail, 2 days from the date of mailing shall be added to the prescribed period."
Although our rule 27(a) provides that the ten days for appeal runs from the date of the order or judgment and not from notice of entry thereof, we believe such rule, viewed in the light of the trial court's rule 66(d) and our rule 10(b), should be construed to mean that two days shall be added to the ten-day period when there is entry of judgment or order signed or decided outside of the presence of the parties and notice thereof is given by mail. Under this construction notice of appeal was timely filed in this case.
Such a construction harmonizes the rules of this court and those of the trial court, and will prevent a party's time for appeal being unduly shortened. It may be noted that under this construction the time for appeal still runs from the date of the judgment or order. It is not dependent on receipt of notice, but if notice is promptly mailed, as the trial court's rule requires, it will ordinarily be received within two days, even if a Sunday or a holiday intervenes, and the party receiving notice will have the same ten-day period afforded when the judgment or order is made in open court.2
Unless our rule is construed as we have indicated, the result would be that in cases such as the present a party would have less than ten days in which to appeal. We have held such time cannot be extended and we also feel it should not be shortened. Especially is this true because of the comparatively short time fixed by our rules for appealing. If the time for appealing was twenty, thirty, sixty or more days, as it is in many jurisdictions, two days might not be important, but here two days amount to one-fifth of the total time. Congress has given the right of appeal to this court. We have fixed the time for exercising that right at almost the minimum. If our rules are so construed as to even further limit the time for appealing, there is danger of reaching that point where the time is so limited as to result in an unreasonable discrimination in the right of appeal or even a discriminatory denial of the right itself.3
Furthermore, we believe that the history of the rules of this court and of the Municipal Court render the above construction proper. Our rule 27(a), requiring that notice of appeal in civil cases be filed within ten days from "date of the judgment or order appealed from", together with all other present rules of this court, was adopted September 14, 1942, shortly after the creation of the court, and has not since been amended. The then existing rules of the Municipal Court did not prescribe exactly how the date of the judgments of the Municipal Court were to be evidenced. Attention was drawn to this situation by this court in Conrad v. Medina, D.C.Mun.App., 47 A.2d 562, decided June 5, 1946. On January 6, 1947, rule 52 of the Municipal Court was amended by that court, and for the first time it was provided, as outlined above, that the notation of a judgment in the civil docket constitutes the entry of judgment, and the judgment is not effective before such entry. The Municipal Court already had in effect as rule 66(e) the rule quoted above, and now designated rule 66(d), providing for service by mail of notice of orders or judgments signed or decided out of the presence of parties or their counsel, and this court already had in effect rule 10(b), giving two days additional when a party has a right or is required to act or proceed within a prescribed period after the service of a notice or other paper upon him and such notice or paper is served by mail. As a result of the above described change in rules by the Municipal Court, we believe there exists a clear ambiguity, which can be cured only by the interpretation of our rule now adopted.
Turning to the merits of the appeal, we find that the amended complaint, though poorly drawn, alleges in substance that defendant agreed that if plaintiff, a real estate broker, and defendant's son would assist defendant in obtaining title to a piece of real estate for a price of $2,500, defendant would engage plaintiff and defendant's son to resell the...
To continue reading
Request your trial
-
Miller v. Avirom
...v. Mallos, 59 A.2d 514, 516 (D.C.Mun. App.1948); Shaffer v. Berger, 81 A.2d 469, 471 (D.C.Mun.App.1951). See also Kyle v. Wiley, 78 A.2d 769, 772 (D.C. Mun.App.1951). 8 We lack original jurisdiction and are not equipped to handle trial functions. Thus our review is necessarily conducted on ......
-
Poyner v. Police and Firemen's Retirement and Relief Board
...adds three days in criminal cases. These provisions were included in the rules of this court after the court decided, in Kyle v. Wiley, 78 A.2d 769 (D.C.Mun.App.1951), that it was necessary to allow extra days when a party was served with an order by mail. "The rationale of the Kyle decisio......
-
Barry v. Robson
...of days from the date of the order appealed from, means the effective date, or date of rendition. Freeman on Judgments, Vol. 1, Ch. 1, 5th ed. Kyle v. Wiley, D.C.Mun.App., 78 A.2d 769. And whatever the rule may be elsewhere, it is now settled in this jurisdiction that an order or judgment i......
-
Da Costa v. Hardy
...after notice thereof has been mailed to the parties or counsel." The above quoted rule was adopted after our decision in Kyle v. Wiley, D.C.Mun. App., 78 A.2d 769, 771, wherein we held that in view of the trial court's rule 66(d) [now 77(d)] and our own rule 10(b), "two days shall be added ......