Ortiz v. Public Service Commission of Puerto Rico, 3435.

• Decision Date: 18 January 1940
• Docket Number: No. 3435.,3435.
• Citation: 108 F.2d 815
• Parties: ORTIZ et al. v. PUBLIC SERVICE COMMISSION OF PUERTO RICO et al.
• Court: U.S. Court of Appeals — First Circuit

108 F.2d 815 (1940)

ORTIZ et al. v. PUBLIC SERVICE COMMISSION OF PUERTO RICO et al.

No. 3435.

Circuit Court of Appeals, First Circuit.

January 18, 1940.

Francis H. Dexter and Dexter & Dexter, all of San Juan, P. R., and William Cattron Rigby, of Washington, D. C. (B. Fernandez Garcia, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellee Public Service Commission.

F. Fernandez Cuyar, of San Juan, P. R. (Celestino Iriarte, Jr., and H. Gonzalez Blanes, both of San Juan, P. R., on the brief), for appellee White Star Bus Line, Inc.

Before WILSON and MAGRUDER, Circuit Judges, and McLELLAN, District Judge.

MAGRUDER, Circuit Judge.

Three owners of motor vehicles, engaged in transportation for hire, appealed to the District Court of San Juan from an order of the Public Service Commission of Puerto Rico, pursuant to Section 78 of the Public Service Act of Puerto Rico (Laws of P. R., 1917, p. 526). The District Court found that the order appealed from was "reasonable and in conformity with law" and therefore entered a decree dismissing the appeal and affirming the order of the Commission, as provided in Section 85 of the Public Service Act, Laws of P. R., 1917, p. 532. The Supreme Court of Puerto Rico on July 26, 1938, rendered a final judgment of affirmance, which judgment is the subject of the present appeal to this court.

Appellee moves to dismiss the appeal for lack of jurisdiction on the ground that application for appeal was not made within three months after the entry of the judgment, as required by 28 U.S.C. § 230, 28 U. S.C.A. § 230.

The judgment below was rendered July 26, 1938. On August 4, 1938, appellants filed in the Supreme Court of Puerto Rico a petition entitled Motion to Vacate the Judgment and to Withhold the Mandate until the Motion is Passed Upon — in effect, a petition for rehearing. The court not then being in session, its Chief Justice directed the entry of an order on August 5, 1938, reading: "Let the two preceding motions be passed to the court in its first session." Upon reconvening, the court on November 10, 1938, summarily denied the motion without a hearing or written opinion. On February 2, 1939, appellants again moved in the Supreme Court of Puerto Rico for a rehearing and, in the alternative, applied to be allowed to appeal to the circuit court of appeals. Both these requests were denied, on February 7, 1939. In its order denying the petition for appeal on the ground that it had been applied for after the lapse of three months from the rendition of final judgment in the case, the Supreme Court recited that the motion for rehearing filed on August 4, 1938, "was on the 10th day of November, 1938 denied without a hearing or written opinion and therefore was not entertained by the court. * * *"

Meanwhile, appellants had presented to a judge of this court another petition for appeal, dated January 30, 1939, and on February 8, 1939, this appeal was allowed by the circuit judge.

"It is well settled that if a motion or petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal." Northern Pacific Railroad Co. v. Holmes, 1894, 155 U.S. 137, 138, 15 S.Ct. 28, 29, 39 L.Ed. 99; Chicago Great Western Railroad Co. v. Basham, 249 U.S. 164, 167, 39 S.Ct. 213, 63 L.Ed. 534; Joplin Ice Co. v. United States, 8 Cir., 1936, 87 F.2d 174, 175. In Northwestern Public Service Co. v. Pfeifer, 8 Cir., 1929, 36 F.2d 5, 7, a motion for a new trial was held to have been "entertained" by the trial court where it heard arguments and ruled thereon.

But it is obvious that the statutory period for appeal cannot be automatically enlarged by the simple expedient of filing a petition for rehearing in the court below. As was pointed out in the recent case of Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937, 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557: "A defeated party who applies for a rehearing and does not appeal from the judgment or decree within the time limited for so doing, takes the risk that he may lose his right of appeal, as the application for rehearing, if the court refuse to entertain it, does not extend the time for appeal." In the present case, the Supreme Court of Puerto Rico, which is in the best position to know, expressly recited in its order denying the petition for appeal that it had not "entertained" the petition for rehearing, having denied the same "without a hearing or written opinion."

It may be that where the published rules of court allow the filing of a ...