Lejeune v. Midwestern Ins. Co. of Oklahoma City, Okl., 14071.
| Decision Date | 05 June 1952 |
| Docket Number | No. 14071.,14071. |
| Citation | 197 F.2d 149 |
| Parties | LEJEUNE et ux. v. MIDWESTERN INS. CO. OF OKLAHOMA CITY, OKL. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Minos Simon, Lafayette, La., for appellants.
J. J. Davidson, Jr., Lafayette, La., for appellee.
Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.
Calling to our attention the fact that a summary judgment was entered against plaintiff on January 23, 1952, while the notice of appeal was not filed until February 25, 1952, more than thirty days thereafter, appellee, defendant below, moves to dismiss the appeal for want of jurisdiction. Rule 73(a) and (b), Federal Rules of Civil Procedure, 28 U.S.C.A.
Appellants concede that the facts are as stated in appellee's motion and that, under rule 6 of the Federal Rules of Civil Procedure, the last day on which the plaintiffs could have given their notice of intention to appeal fell on February 23, 1952. They contend, though, that the notice of appeal was timely because, though not filed until February 25th, it was placed in the United States Post Office in Lafayette, Louisiana, for mailing, on February 23rd.
Urging upon us that this was a compliance with the rule, they insist that to hold otherwise would in effect give more time for appealing to persons living in the same place with the clerk than to persons living at other places.
We cannot agree. In Louisiana Discount Corp. v. Commissioner, 5 Cir., 193 F.2d 495, having to do with the filing with the Tax Court of a petition for review, the same claim was made to, and rejected by this court, on the authority of Poynor v. Commissioner, 5 Cir., 81 F.2d 521.
The motion to dismiss is granted and the cause is dismissed. Cf. Martin v. Hess, 6 Cir., 176 F.2d 834, 835; Lamb v. Shasta Oil Co., 5 Cir., 149 F.2d 729.
To continue reading
Request your trial
-
Hadjipateras v. PACIFICA, SA
...5 Cir., 1958, 252 F.2d 431; Virginia Land Co. v. Miami Shipbuilding Corporation, 5 Cir., 1953, 201 F.2d 506; Lejeune v. Midwestern Insurance Co., 5 Cir., 1952, 197 F.2d 149; Crump v. Hill, 5 Cir., 1939, 104 F.2d 36. Of the decisions of this Court, cited by the majority to avoid the hypercri......
-
Rothman v. U.S., 74-1240
...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 760 (1964).20 378 U.S. at 144, 84 S.Ct. at 1692.21 378 U.S. at 143-144, 84......
-
Fallen v. United States
...course of mail delivery within the time allowed. Ward v. Atlantic Coast Line Railroad Company, supra; Lejeune v. Midwestern Insurance Co. of Oklahoma City, 5th Cir., 1952, 197 F.2d 149; Poyner v. Commissioner of Internal Revenue, 5th Cir. 1936, 81 F.2d 521. Although these decisions were app......
-
Ward v. Atlantic Coast Line Railroad Company
...852, 854; Marten v. Hess, 6 Cir., 176 F.2d 834. 5 See Poynor v. Commissioner, 5 Cir., 81 F.2d 521; cf. Lejeune v. Midwestern Ins. Co. of Oklahoma City, Okl., 5 Cir., 197 F.2d 149. 6 See Silverton v. Valley Transit Cement Co., 9 Cir., 237 F.2d 7 The only evidence which came close to contradi......