Mitchell v. Maurer

• Decision Date: 23 October 1933
• Docket Number: No. 7262.,7262.
• Citation: 67 F.2d 286
• Parties: MITCHELL, Insurance Com'r of California, v. MAURER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

67 F.2d 286 (1933)

MITCHELL, Insurance Com'r of California, v. MAURER et al.

No. 7262.

Circuit Court of Appeals, Ninth Circuit.

October 23, 1933.

E. Forrest Mitchell, Insurance Com'r of Cal., and Frank L. Guerena, both of San Francisco, Cal., for appellant.

Ben S. Beery, E. D. Lyman, P. B. Plumb, and C. L. McGaughey, all of Los Angeles, Cal., for appellees.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

On April 20, 1933, there was filed in the court below a petition for the appointment of ancillary receivers for the appellee corporation, and an ex parte order on that petition was signed by the District Judge, appointing two such receivers.

On May 2, 1933, the appellant herein, as insurance commissioner of the state of California, filed in the above proceedings a motion to vacate the order appointing the receivers, to dissolve the restraining order, to dismiss the petition for the appointment of receivers, and to re-examine the ex parte order appointing the receivers. An affidavit was filed in support of the motion, and another affidavit was filed in opposition to it. On May 8, the date specified in the motion, the matter was heard on the affidavits, before the District Court, was argued by counsel for each side, and was submitted on briefs. On May 12 an order was entered denying the motion.

On May 26, 1933, the appellant filed a motion for rehearing of the order denying the motion of E. Forrest Mitchell to vacate the order appointing the receivers, to dissolve the restraining order, to dismiss the petition for the appointment of receivers, and to re-examine the ex parte order appointing the receivers, in support of which motion for rehearing there were filed two affidavits.

On May 29, 1933, the motion for rehearing was heard, and on June 13, 1933, the District Judge denied the motion.

On July 13, 1933, the appellant filed his petition for appeal to this court, and his assignments of error. On July 14, 1933, an order allowing the appeal was filed.

The petition for appeal refers to both the denial of the motion to vacate the order appointing the receivers and to the denial of the motion for a rehearing of the order denying such motion to vacate.

On October 12, 1933, the appellees filed a motion to dismiss the appeal, on the grounds that the order on the appellant's original motion to vacate was appealable, and that appellant could not by a subsequent motion for a rehearing extend the thirty-day period for appeal therefrom, and that the order denying the motion for a rehearing was not an appealable order.

Under our view of the case, it will be necessary to consider only the first ground urged in support of the motion; that is to say, that the order on the appellant's original motion to vacate was appealable, and appellant could not by a subsequent motion for rehearing extend the thirty-day period for appeal therefrom.

The proposition that, after a final judgment or decree by the lower court, a motion for a rehearing in equity or for a new trial at law tolls the statute limiting the time within which appeals may be taken, is too elementary to require extensive reference to authorities. In Morse v. United States, 270 U. S. 151, 153, 154, 46 S. Ct. 241, 242, 70 L. Ed. 518, the court said: "There is no doubt under the decisions and practice in this court that where a motion for a new trial in a court of law, or a petition for a rehearing in a court of equity, is duly and seasonably filed, it suspends the running of the time for taking a writ of error or an appeal, and that the time within which the proceeding to review must be initiated begins from the date of the denial of either the motion or petition. Many cases cited." See, also, Citizens' Bank of Michigan City, Ind., v. Opperman, 249 U. S. 448, 449, 39 S. Ct. 330, 63 L. Ed. 701; Brockett et al. v. Brockett, 2 How. (43 U. S.) 238, 240, 241, 11 L. Ed. 251; Janus v. United States (C. C. A. 9) 38 F.(2d) 431, 433.

In the instant case, however, we must address our inquiry to the question of whether or not a petition for a rehearing filed within thirty days after the entry of an interlocutory order tolls the statute limiting the time for appeals, so that a petition for an appeal filed exactly thirty days after the entry of an order denying a motion for a rehearing, though sixty-two days after the entry of the interlocutory order sought to be appealed from, would be timely.

The subject of appeals from interlocutory orders or decrees is treated in section 129, amended, of the Judicial Code (28 USCA § 227). The pertinent portions of that section follow: "Where, upon a hearing in a district court, or by...