Raughley v. Pennsylvania Railroad Company
| Decision Date | 07 February 1956 |
| Docket Number | No. 11644.,11644. |
| Citation | 230 F.2d 387 |
| Parties | Burton R. RAUGHLEY, Appellant, v. PENNSYLVANIA RAILROAD COMPANY. |
| Court | U.S. Court of Appeals — Third Circuit |
G. Fred DiBona, Philadelphia, Pa. (James F. Masterson, Philadelphia, Pa., on the brief), for appellant.
Theodore Voorhees, Philadelphia, Pa., for appellee.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
In this case the appellee has moved to dismiss the appellant's appeal, alleging it not to be timely brought. The case takes us to an examination and application of the Rules of Civil Procedure, 28 U.S.C., having to do with the regulations of timeliness for appeal.
Specifically to present the problem the docket entries are herewith set out:
A casual inspection of these entries shows that the original judgment was granted December 10th and the notice of appeal was filed the following May 16th. Can the appellant bring his case within any of the provisions which extend the ordinary time for taking an appeal?
We start with rule 73 as amended in 1946 and 1948. Rule 73(a) lays down the general rule that the appeal must be taken within thirty days from the entry of the judgment appealed from. Then follow certain exceptions not applicable here. Following these is certain language which had better be quoted.
"* * * The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59. * * *"
The reference to the other rules takes us, of course, to those rules. Rule 50(b) has to do with motions for judgment n.o.v. Rule 52(b) has to do with amendment of findings of fact; rule 59, motions for new trial or to alter or amend the judgment.
The running of the time for appeal is terminated if timely motions under any one of these rules are made.1 But each one of these rules provides that the motion, to be timely, must be made within ten days after (1) the receipt of the verdict or the discharge of the jury under rule 50(b) or (2) the entry of the judgment under the other rules.
Now is there any way in which such a motion, even though not timely made, can still have the effect of tolling the period for appeal? Specifically did the court below produce such an effect by entertaining and ruling (on May 12) on appellant's motion of January fourth? We turn to rule 6(b) as amended in 1946. This we shall have to quote:
It will be noted that the last clause prohibits a court from extending the time for appeal under rule 73(a), "except to the extent and under the conditions stated in it." Rule 73(a) does not specifically authorize a court to extend this time by entertaining and ruling on an untimely motion. We think that it cannot so do. The same clause in rule 6(b) prevents a court from extending the time for making those motions which under 73(a) toll the time for appeal. Thus it seems apparent that 6 (b) renders a court powerless to entertain such motions when untimely made.2 The action of the trial court here in regard to the motion of January fourth must therefore be considered as a nullity.
The appellant has cited us quite a number of cases tending to show a possibility of a freer time limit than the above discussion would seem to indicate. Some of these cases are in bankruptcy. In bankruptcy a special rule prevails because a bankruptcy court has no terms. The bankruptcy cases are not relevant in a case like this.3
The other decisions, and there are some, were before the 1946 amendment to rules 6(b) and 73(a). Prior to the 1946 amendment there had been some confusion and a split in authority. What may be called the leading case against the enlargement of time where the rules have not been complied with is Safeway Stores, Inc., v. Coe, 1943, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L. R. 782. The opinion by Chief Judge Groner is a thorough discussion of the problem. There is little to add to it. The conclusion there reached, prior to the 1946 amendment, is sustained by adequate authority4 although as said above the decisions were not in complete accord.
The purpose of the 1946 amendment, according to the notes of the advisory committee, was to clear up the conflict of authority and to follow the rule of the Safeway Stores case above cited.5 These rules, especially in the light of what the advisory committee said about the purpose of the amendments, seem clearly to settle this case in favor of the appellee's motion except for one point.
That point has to do with what happened in the chambers of the trial judge on December 20th or 21st, 1954. Counsel for the appellant says he dropped in to see the trial judge to call his attention to the fact that, in counsel's opinion, the decision had been rendered against him on a ground not argued or briefed by either party. He requested the court, he says, to permit a reargument so that the question could be presented. At the judge's request, the narrative runs, counsel left a memorandum of his authorities with the judge's secretary for examination. On January 3, 1955, counsel was informed by the court that the reargument would be allowed and it was, as the docket entries show.
Now the question is whether this informal visit to the judge's chambers will constitute a motion under any one of the rules above mentioned so as to comply with the requirement of timeliness. We have no record whatever; all the statements above made were given us by counsel upon the argument of the motion to dismiss. Counsel is a member of the bar of this Court in good standing and we have no reason to think that he is not giving us frankly the best of his recollection concerning the matter. It will be noted, however, that his opponent was not present at the conference. No notice was given to his opponent, so far as we know. No written motion was presented to the judge. No order was made by the judge concerning the submission of the memorandum. Nothing came out of the matter until the order for reargument made in January.
Rule 7(b) (of the Rules of Civil Procedure) is pretty explicit on the point and reads as follows:
The purpose of the rule is, of course, to give a simple and elastic procedure without too much emphasis on form. There also appears in the rules already discussed an emphasis upon the element of promptness, with a desirable view in mind of keeping litigation moving instead of letting it drag. In the conduct of any organization which has many things to do, some form of system is required lest everything become so botched that the business cannot be done. This applies to the running of an army, a mercantile establishment or a court. We think rule 7(b) (1) is to be taken as meaning what it says. That being so, an informal request to a judge with no notice to an opposing party and no order by the judge following the request cannot be considered as a motion under the other rules. A similar position was taken by this Court in In re J. & M. Doyle Co., 3 Cir., 1942, 130 F.2d 340.6
Our conclusion is that the appeal came too late and the appellee's motion to dismiss must be granted.
In order to arrive at the disposition which it made the majority had to make these two separate rulings:
First — Since judgment on the appellee's motion for summary judgment was granted December 10, 1954, the District Court's January 5, 1955 Order entered pursuant to appellant's motion for reconsideration filed that day, was a "nullity" because "(Rule) 6(b) renders a court powerless to entertain such motions when untimely made".
Second — "no written motion" was presented to the District Court on December 20th...
To continue reading
Request your trial
-
Fitzsimmons v. Yeager
...6 See Rule 73. See also Gainey v. Brotherhood of Railway & Steamship Clerks etc., 303 F.2d 716 (3 Cir. 1962); Raughley v. Pennsylvania Railroad Company, 230 F.2d 387 (3 Cir. 1956). 7 The application was sworn to on January 13, 1967; the date it was received does not 8 E. g., United States e......
-
Wallace v. Warehouse Employees Union
...10 days; therefore the motion was a nullity which did not toll the time for an appeal. The other opinion, Raughley v. Pennsylvania Railroad Co., 230 F.2d 387 (3d Cir. 1956), holds that since a written motion was not filed in compliance with Rule 7(b)(1) (requiring a written motion setting f......
-
In re Allegheny Health, Educ. & Research Found.
...7(b)(1), see, e.g., In re Mancini, 1986 WL 28905 at *3-4 (Bankr.S.D.N.Y.1986) (citing, inter alia, Raughley v. Pennsylvania Railroad Co., 230 F.2d 387, 391 (3rd Cir.1956), to the effect that a letter by plaintiff's counsel requesting relief and an affidavit filed to obtain an order could su......
-
Bailey v. Sharp
...himself. The ten-day limitation on the time for making such motions may not be waived by the trial judge."); Raughley v. Pennsylvania R.R., 230 F.2d 387, 390 n. 2 (3d Cir.1956) (Rule 6(b) "renders a court powerless to entertain" untimely motions); Beliz v. W.H. McLead & Sons Packing Co., 76......