Mosier v. Federal Reserve Bank of New York, No. 29

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSWAN, AUGUSTUS N. HAND, and CLARK, Circuit
Citation132 F.2d 710
PartiesMOSIER v. FEDERAL RESERVE BANK OF NEW YORK (two cases).
Docket NumberNo. 29,30.
Decision Date09 November 1942

132 F.2d 710 (1942)

MOSIER
v.
FEDERAL RESERVE BANK OF NEW YORK (two cases).

Nos. 29, 30.

Circuit Court of Appeals, Second Circuit.

November 9, 1942.


132 F.2d 711

Hurlbert McAndrew, of Larchmont, N. Y., for appellant.

Lynch & Cahn, of White Plains, N. Y. (Monroe J. Cahn, of White Plains, N. Y., Walter S. Logan, of New York City, Harold M. Miller, of White Plains, N. Y., and John H. Wurts, of New York City, of counsel), for appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

SWAN, Circuit Judge.

It is axiomatic that this court must examine its own jurisdiction even though the parties have not questioned it. Collins v. Miller, 252 U.S. 364, 366, 40 S. Ct. 347, 64 L.Ed. 616; United States v. King & Howe, Inc., 2 Cir., 78 F.2d 693, 695. In action No. 1 the decree of dismissal was entered on February 8, 1939, and no notice of appeal therefrom was filed until June 15, 1939. The time for taking

132 F.2d 712
an appeal in such a case is limited to three months by statute, 28 U.S.C.A. § 230. It is mandatory and jurisdictional. Alaska Packers Ass'n v. Pillsbury, 301 U.S. 174, 177, 57 S.Ct. 682, 81 L.Ed. 988; Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780, 781; Stradford v. Wagner, 10 Cir., 64 F.2d 749, 751. Although the method of taking an appeal has been changed by the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the time limitation remains unaffected. See note by Advisory Committee on Rules to Rule 73, 28 U.S.C.A. following section 723c; Hill v. Hawes, App.D.C., 132 F.2d 569. Consequently the appeal in action No. 1 must be dismissed unless, as the appellant contends, the time has been extended by reason of the following facts. At the conclusion of the trial the district court announced that there must be a judgment for the defendant on the merits and directed counsel to submit on five days' notice proposed findings of fact and law and a decree. Such proposed findings and decree were noticed by the defendant for settlement on January 11, 1939; objections thereto were filed by the plaintiff. On January 9th, however, the plaintiff obtained a stay of the proposed settlement and an order to show cause why a rehearing should not be granted, the pleadings amended to conform to the evidence, and the suit consolidated with another action then pending.* A hearing on the plaintiff's order to show cause was had before, the trial judge, and on February 6, 1939 he endorsed on the cover of the plaintiff's motion papers: "This motion is in all respects denied and I shall proceed to pass upon the proposed findings of fact and conclusions of law and objections thereto." On the same date he signed findings of fact and law and a decree dismissing the complaint on the merits. The decree was entered by the clerk of the district court on February 8, 1939. Thereafter under date of March 16, 1939, and notwithstanding the prior denial of the plaintiff's motion and the prior entry of the decree, the district judge signed a formal order denying the motion and vacating the stay contained in the show cause order of January 9th. The order of March 16th was entered by the clerk on March 21, 1939. On June 15, 1939, the plaintiff filed a notice of appeal from the decree of February 8th and the order of March 21st

It is well settled that where the court entertains a motion for a new trial in an action at law or for a rehearing in a suit in equity, the time to appeal from the judgment or decree is suspended until the motion is disposed of; and this is true even though the court reaffirms its former action and refuses to enter a decree different from the original one. Morse v. United States, 270 U.S. 151, 153, 46...

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27 practice notes
  • International Business Machines Corp. v. United States, No. 1133 to 1136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 17 Diciembre 1973
    ...with the relief sought by that motion amounts to a denial of the motion. At least since Mosier v. Federal Reserve Bank of New York, 132 F.2d 710, 712 (2 Cir.1942), we have recognized the basic propositions that "the determination of a motion is not always expressed, but may be implied&......
  • United States v. United Mine Workers of America Same v. Lewis, John United Mine Workers of America v. United States Lewis, John v. Same United Mine Workers of America v. Same, Nos. 759
    • United States
    • United States Supreme Court
    • 6 Marzo 1947
    ...though there are exceptions, the time is three months. 28 U.S.C. § 230, 28 U.S.C.A. § 230; Mosier v. Federal Reserve Bank, 2 Cir., 132 F.2d 710, 712. In criminal cases the Federal Rules now allow taking an appeal by filing notice of appeal as in civil cases. But an appeal must be taken by a......
  • Fitzsimmons v. Yeager, No. 16495.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Febrero 1968
    ...75 S.Ct. 878, 99 L.Ed. 1290; St. Luke's Hospital v. Melin, 172 F.2d 532, 533 (8 Cir. 1949); Mosier v. Federal Reserve Bank of New York, 132 F.2d 710 (2 Cir. The Supreme Court has explicitly ruled that when an appeal is not taken "within the time prescribed by law" that a federal c......
  • Frase v. Barnhart, No. 6
    • United States
    • Court of Appeals of Maryland
    • 11 Diciembre 2003
    ...also Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 939 n. 8 (4th Cir. 1980) (same); Mosier v. Federal Reserve Bank of N.Y., 132 F.2d 710, 712 (2nd Cir. 1942) (citing 42 Corpus Juris 511 for the proposition that "the entry of an order inconsistent with granting the relief ......
  • Request a trial to view additional results
27 cases
  • International Business Machines Corp. v. United States, No. 1133 to 1136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 17 Diciembre 1973
    ...with the relief sought by that motion amounts to a denial of the motion. At least since Mosier v. Federal Reserve Bank of New York, 132 F.2d 710, 712 (2 Cir.1942), we have recognized the basic propositions that "the determination of a motion is not always expressed, but may be implied&......
  • United States v. United Mine Workers of America Same v. Lewis, John United Mine Workers of America v. United States Lewis, John v. Same United Mine Workers of America v. Same, Nos. 759
    • United States
    • United States Supreme Court
    • 6 Marzo 1947
    ...though there are exceptions, the time is three months. 28 U.S.C. § 230, 28 U.S.C.A. § 230; Mosier v. Federal Reserve Bank, 2 Cir., 132 F.2d 710, 712. In criminal cases the Federal Rules now allow taking an appeal by filing notice of appeal as in civil cases. But an appeal must be taken by a......
  • Fitzsimmons v. Yeager, No. 16495.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 19 Febrero 1968
    ...75 S.Ct. 878, 99 L.Ed. 1290; St. Luke's Hospital v. Melin, 172 F.2d 532, 533 (8 Cir. 1949); Mosier v. Federal Reserve Bank of New York, 132 F.2d 710 (2 Cir. The Supreme Court has explicitly ruled that when an appeal is not taken "within the time prescribed by law" that a federal c......
  • Frase v. Barnhart, No. 6
    • United States
    • Court of Appeals of Maryland
    • 11 Diciembre 2003
    ...also Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 939 n. 8 (4th Cir. 1980) (same); Mosier v. Federal Reserve Bank of N.Y., 132 F.2d 710, 712 (2nd Cir. 1942) (citing 42 Corpus Juris 511 for the proposition that "the entry of an order inconsistent with granting the relief ......
  • Request a trial to view additional results

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