Maryland Casualty Company v. Conner

• Decision Date: 23 August 1967
• Docket Number: No. 9390.,9390.
• Citation: 382 F.2d 13
• Parties: MARYLAND CASUALTY COMPANY, Appellant, v. W. S. CONNER, an individual doing business as W. S. Conner Construction Company, and Bushman Construction Company, a Missouri Corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 13 (1967)

MARYLAND CASUALTY COMPANY, Appellant, v. W. S. CONNER, an individual doing business as W. S. Conner Construction Company, and Bushman Construction Company, a Missouri Corporation, Appellee.

No. 9390.

United States Court of Appeals Tenth Circuit.

August 23, 1967.

Denis G. Stack, Denver, Colo. (Akolt, Shepherd & Dick, Laurence W. DeMuth, Jr., Denver, Colo.), for appellee.

Bill Earl Tom, Denver, Colo. (Hiester, Tanner & Clanahan, Denver, Colo.), for appellant.

Before JONES^*, SETH and HICKEY, Circuit Judges.

JONES, Circuit Judge:

Maryland Casualty Company was surety on payment bonds of the prime contractor in the construction of a Capehart housing project at the United States Air Force Academy near Colorado Springs, Colorado. In an action of a subcontractor to foreclose liens and for money judgments an appeal was taken from the district court's judgment. This Court reversed the judgment in part and affirmed in part. Bushman Construction Co. v. Air Force Academy Housing, Inc., 10th Cir. 1964, 327 F.2d 481.¹ On remand to the district court an amended complaint was filed, further proceedings were had, additional testimony was taken and, on November 21, 1966, the court made findings and conclusions by which Maryland Casualty was found to be liable to Bushman. Bushman Construction Co. v. Conner, D.C.D.Colo.1966, 260 F.Supp. 779. The court's judgment was entered on December 1, 1966. On January 5, 1967, Maryland Casualty filed a motion for an Extension of Time under Rule 73(a).² The motion set forth that the United States was the owner of Air Force Academy Housing, Inc., an original party, and hence the time for filing a notice of appeal was sixty days. The motion stated that the senior partner of the law firm representing Maryland Casualty died suddenly on August 27, 1966, that the decedent had been responsible for the litigation of the firm, that another partner took over the litigation with which he had not before been familiar and he had been absent from his home and office in connection with other pending litigation during the thirty day appeal period and neglected to perfect the appeal.

A hearing was had on the motion on February 3, 1967. The attorney who had represented Maryland Casualty and others at the trial of the cause on the merits, held October 31, 1966, and who had signed the motion for an extension was present. By way of excuses for not making a timely filing of a notice of appeal, he recited the work involved in a number of other pending cases and the burden which had fallen upon him since the death of the senior member of his firm. In his statement it was said:

"It finally came to my attention that the time was near. I filed it on the 5th of January, and then I discovered it was late."

The district court observed that the delay was approximately two days and that the litigation had been pending more than seven years. The court commented upon the fact that the deceased attorney had taken the lead in the case prior to his death. The district court concluded that this was an extraordinary situation which deserved relief. On the same day the court entered an order finding that the matter was one within the discretion of the court and extending the time for thirty days from January 3, 1967, and ordering that the notice of January 5, 1967, would be considered as filed within the extension.

The appellee, Bushman Construction Co., has moved to dismiss the appeal, asserting that the order purporting to extend the time was improper because no excusable neglect, within the meaning of the Rule, was shown, and hence the order was filed out of time. The appeal is before this Court on the motion to dismiss.

The filing of a timely notice of appeal is essential to the jurisdiction of a court of appeals to review a judgment of a district court. Stone v. Wyoming Supreme Court, 10th Cir. 1956, 236 F.2d 275; Spengler v. Hughes Tool Co., 10th Cir. 1948, 169 F.2d 166.

There is no basis for the assertion that the United States is a party to the action and therefore the time for taking the appeal is sixty days. The only connection of the United States with the litigation was the attempt, at the outset of the litigation, to assert a lien upon the property of Air Force Academy Housing, Inc., a corporation of the United States. This corporation went out of the case on an order of dismissal and a summary judgment. The dismissal and judgment were affirmed by this Court. Bushman Construction Co. v. Air Force Academy Housing, supra. In the amended complaint, filed by Bushman Construction Co. after this Court's remand, no attempt was made to assert any claim against the United States or its corporation. Bushman Construction Co. v. Conner, D.C., 260 F.Supp. 779. Where, as here, the interest of the United States has been finally determined prior to the entry of a judgment from which an appeal is sought, the United States is not a party and the time for appeal is thirty days rather than sixty days. Virginia Land Co. v. Miami Shipbuilding Corp., 5th Cir. 1953, 201 F.2d 506. See Barnard-Curtiss Co. v. United States, 10th Cir. 1958, 252 F.2d 94, cert. den. 358 U.S. 906, 79 S.Ct. 230, 3 L.Ed.2d 227; Young v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 8th Cir. 1966, 369 F.2d 502.

The posture of this case presents a problem which, so far as we can ascertain, has not been judicially considered. The notice of appeal was not filed within the thirty day period prescribed by the Rule. The time had not then been extended and the motion to extend had not then been filed. The notice of appeal was filed and the application for an extension was made during the thirty days from the expiration of the original time prescribed, but the order purporting to extend the time was not entered until after the end of the second thirty day period. There may be grave doubt as to whether the court can give validity, retroactively, to a notice of appeal which was inoperative when filed, at a time beyond that within which the filing of the notice could have been authorized. Professor Moore suggests the problem.³ Since a solution of the problem is not required for a decision of the appeal, we leave it for determination in a cause where it may be the decisive issue.

Prior to the 1966 amendments to the Rules, it was provided by Rule 73(a) that the district court could extend the time for appeal "upon a showing of excusable neglect based upon a failure of a party to learn of the entry of the judgment." By the 1966 amendment the words "based upon a failure to learn of the entry of the judgment," were eliminated. The note of the Advisory Committee which drafted the amendment states:

"The original rule authorized the district court to extend the time for appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed `upon a showing of excusable neglect based upon a failure of a party to learn of the entry of the judgment * * *.\' The exception numbered (2) eliminates the phrase `based upon a failure of a party to learn of the entry of the judgment\' and thus empowers the district court to extend the time upon a showing of excusable neglect of any kind. In view of the ease with which an appeal may be perfected, no reason other than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result."

The notes of the Advisory Committee are entitled to weight in ascertaining the meaning of the Rules. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185. In a recent discussion of the 1966 amendments, Mr. Robert L. Stern, a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States, has said:

"Heretofore 30 days extra for taking an appeal

...