North Umberland Mining Co. v. Standard Acc. Ins. Co., 12950.
| Decision Date | 22 January 1952 |
| Docket Number | No. 12950.,12950. |
| Citation | 193 F.2d 951 |
| Parties | NORTH UMBERLAND MINING CO. v. STANDARD ACC. INS. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald Armstrong, Torrance, Cal., for appellant.
Bauder, Gilbert, Thompson & Kelly, Jean Wunderlich, Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY, and BONE, Circuit Judges.
We are confronted on this appeal with an apparently novel question concerning our jurisdiction to entertain it.
The judgment attempted to be appealed from was entered January 25, 1951. No appeal was taken within the 30-day period prescribed by Fed.Rules Civ.Proc. rule 73(a), 28 U.S.C.A. On March 20, 1951, counsel for the losing party filed and presented to the district court an affidavit in which he stated that through inadvertence he had permitted the 30-day period to expire because he was not aware of the entry of the judgment and did not receive notice of it. He asked that the time for appeal be extended to March 26, 1951. On the same day the court, without notice to appellee, made an order extending the time to the date requested. Notice of appeal, dated March 22, 1951, was thereafter served by appellant by mail within the extended time.
On April 6, 1951, appellee filed notice of motion and motion for reconsideration and vacation by the court of its order on the ground that the same was made without notice to appellee or motion made in open court, and without opportunity for appellee to be heard or to object thereto. The further ground was advanced that the files, records, proceedings and dockets relating to the cause affirmatively show that the clerk on the date of the entry of the judgment notified all counsel of the entry of the same. Accompanying the motion was an affidavit of appellee's counsel of record stating that he had received from the clerk on January 26, 1951, a copy of the notice of entry of judgment and is informed and alleges that like notice was sent to all attorneys of record. Attached to the affidavit was a copy of the clerk's docket entry of January 25, 1951, giving the name and address of appellant's counsel, and other counsel in the case, and containing notice that judgment in the cause had been that day entered. This showing was not controverted.
When the motion to vacate the ex parte extension order came on to be heard the court declined to rule upon it on the ground that "if the order extending time was a voidable order, the taking of the appeal has robbed the District Court of jurisdiction; and if, on the other hand, it is a void order, it is void without this Court acting thereon."
The provisions governing the situation are found in Rules 77(d), 73(a), and 6(b) and (d) of the Rules of Civil Procedure, the material parts of which are shown on the margin.1 The time for taking an appeal in this case was, of course, 30 days from the entry of the judgment as prescribed by Rule 73(a). Had the request for enlargement of the time been made before the expiration of that period the court would have been empowered to order the enlargement "with or without motion or notice." But since it was made after expiration of the period, that is to say at a time when the movant was already in default, the court was without authority to act ex parte; it might proceed only upon motion and after notice of hearing served on the party or parties affected. Such is the unmistakable import of Rule 6(b) and (d); and there is nothing anywhere in the Rules or in the nature of the proceeding itself suggestive of a contrary interpretation. Compare the provision...
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Malone v. Avenenti
...it could proceed only upon motion and after notice of hearing served on the State. North Umberland Mining Co. v. Standard Accident Insurance Co., 193 F.2d 951, 952 (9th Cir.1952) (North Umberland ); see Advisory Committee Notes following rule 4 (explaining that rule 4(a)(5) codifies the Nor......
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Diffenderfer v. Homer
...Gas Co., 10 Cir., 1962, 303 F.2d 273, cert. denied, 1962, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; North Umberland Mining Co. v. Standard Accident Ins. Co., 9 Cir., 1952, 193 F.2d 951. This is a sound7 rule which was not heeded. The appeal must therefore be dismissed as Appeal dismissed. AP......
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Plant Economy, Inc. v. Mirror Insulation Company
...had expired, the court was without authority to act ex parte. This was the conclusion reached in North Umberland Mining Co. v. Standard Acc. Ins. Co., 193 F.2d 951, 952 (9 Cir. 1952) based upon reasons which appear to us to be unassailable.6 Cf. Swindell-Dressler Corp. v. Dumbauld et al., 3......
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Winchell v. Lortscher
...Co., 10 Cir., 1962, 303 F.2d 273, 274, certiorari denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; North Umberland Mining Co. v. Standard Acc. Ins. Co., 9 Cir., 1952, 193 F.2d 951, 952. In the abovecited cases the Courts of Appeals found themselves unable to take jurisdiction either because......
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28 APPENDIX U.S.C. § 4 Appeal As of Right-When Taken
...codifies the result reached under the present provisions of FRCP 73(a) and 6(b). North Umberland Mining Co. v. Standard Accident Ins. Co., 193 F.2d 951 (9th Cir., 1952); Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir., 1962); Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d ......