Neely v. Merchants Trust Co. of Red Bank, NJ

• Citation: 110 F.2d 525
• Decision Date: 11 March 1940
• Docket Number: No. 7282.,7282.
• Parties: NEELY v. MERCHANTS TRUST CO. OF RED BANK, N. J., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

110 F.2d 525 (1940)

NEELY v. MERCHANTS TRUST CO. OF RED BANK, N. J., et al.

No. 7282.

Circuit Court of Appeals, Third Circuit.

March 11, 1940.

Wm. A. Schnader, of Philadelphia, Pa., and Albert G. Avery and George Gordon Battle, both of New York City, for appellant.

Wm. R. Blair, of Philadelphia, Pa., and Parsons, Labrecque & Borden, of Red Bank, N. J. (Theodore D. Parsons, of Red Bank, N. J., of counsel), for appellees.

Before MARIS and JONES, Circuit Judges.

MARIS, Circuit Judge.

The appellees, defendants below, have moved to dismiss an appeal taken by the plaintiff from a decree of the district court for the District of New Jersey dismissing his bill of complaint. 26 F.Supp. 130. They urge that the appeal was not taken within the period of three months fixed by Section 8(c) of the Act of February 13, 1925, 43 Stat. 940, 28 U.S.C.A. § 230. The transcript of the record certified to this court by the clerk of the district court indicates that the decree was filed on January 20, 1939; that it was entered in the civil docket of the district court on January 23, 1939; that on February 2, 1939, a motion to open and vacate the decree, to amend the findings and conclusions of the court and to make certain additional findings and conclusions, was served on the defendants; that the motion was denied on September 11, 1939; and that on December 8, 1939, the plaintiff filed his notice of appeal.

It will be seen that the appeal was taken more than ten months after the final decree was entered. In the interim, however, a motion in the nature of a motion for a new trial under Civil Procedure Rule 59, 28 U.S.C.A. following section 723c, and for amended and new findings and an amended judgment under Civil Procedure Rule 52(b) had been made and denied. If this motion was served within the time fixed by the Rules, namely, within ten days after the entry of the decree, it unquestionably suspended the running of the time for taking an appeal, and that time accordingly began to run from September 11, 1939, when the motion was denied. Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 14 S. Ct. 4, 37 L.Ed. 986; Morse v. United States, 270 U.S. 151, 46 S.Ct. 241, 70 L.Ed. 518; 3 Moore's Federal Practice p. 325; Note of Advisory Committee on Federal Procedure Rule 59, 28 U.S.C.A. following § 723c. As we have pointed out, the clerk of the district court has certified in the transcript of the record before us that he entered the decree appealed from on January 23, 1939 and it appears from the record that the plaintiff's motion was served on February 2nd, just ten days thereafter. It would follow that the appeal was in time since it was taken on December 8, 1939, less than three months after the motion was denied.

The appellees contend, however, that the final decree was entered on January 20, 1939, 13 days before the plaintiff's motion was made, which was therefore out of time, and that the certification of the clerk that the decree was entered January 23rd does not truly disclose what occurred in the district court and is a misstatement in the transcript which should be stricken out. The appellant concedes that no such entry appears in the docket in the...