Roumel v. Stradley, 1709.
| Decision Date | 21 December 1955 |
| Docket Number | No. 1709.,1709. |
| Citation | 119 A.2d 111 |
| Court | D.C. Court of Appeals |
| Parties | Arthur C. ROUMEL, Appellant, v. Kenneth N. STRADLEY, Appellee. |
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
This appeal challenges the correctness of a judgment against appellant for broker's commissions on two real estate transactions. Although not raised by appellee, we must consider the jurisdictional question of whether the appeal was timely noted.
The case was tried without a jury and at its conclusion the trial court, after orally stating certain findings of fact, announced that finding would be entered for plaintiff for the amount claimed. Formal entry of the finding was made on the same day. Appellant did not move for a new trial and judgment on the finding was entered one week later.
Four days after entry of judgment appellant filed a motion "to amend the findings and judgment herein or for a new trial." When this motion was denied some six weeks thereafter, appeal was noted.
Our rule 27(a) requires that notice of appeal be filed within ten days from date of entry of judgment. The notice here was filed long after that period, and the question is whether the filing and pendency of the motion extended the time for noting an appeal. Our rule 27(d) provides that "When a motion has been seasonably filed * * * to vacate or modify the * * * finding, or judgment, the times specified in sections (a) * * * hereof shall not begin to run until disposition of such motion." The trial court's rule 52(c), based on Federal Rule of Civil Procedure 52(b), 28 U.S.C.A. provides that: "Upon motion of a party made not later than 5 days after entry of judgment in the civil docket, the court may amend its findings or make additional findings and may amend the judgment accordingly." And the trial court's rule 59(g) based on Federal Rule of Civil Procedure 59(e), provides: "A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment."
Appellant's motion made reference to the trial court's rule 52(c). If it were properly filed under that rule, the appeal was timely. But if it were in effect nothing more than a motion for new trial, the appeal was late because the trial court's rule 59(b) requires that a motion for new trial be filed not later than four days after entry of the finding. We must examine the contents of the motion to determine its true nature.
The motion advanced certain propositions designed to show that the finding and judgment thereon were contrary to the law and the evidence. It concluded by asking that the court "amend its findings or make additional findings to show the violation by plaintiff of his fiducary obligations to his principal," and that "the judgment be amended to find for the defendant."
We think it plain that every ground advanced in the motion could and should have been used as the basis of a motion for a new trial. But it is equally plain that the trial court could not have treated the motion as one for a new trial because it was not filed within the time limited for such motion.1
Moreover, we are of opinion that the trial court could not have granted the relief sought....
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...Co., supra note 5, 388 A.2d 44, 46 (D.C. 1978); Graves v. Nationwide Mutual Ins. Co., 151 A.2d 258, 261 (D.C. 1959); Roumel v. Stradley, 119 A.2d 111, 112 (D.C. 1955). In their motion appellants sought reconsideration of the grant of summary judgment on the basis that (1) they had erred in ......
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Dublin v. United States, 12438.
...relief sought, not by its label or caption. Graves v. Nationwide Mut. Ins. Co., D.C.Mun.App., 151 A.2d 258 (1959); Roumel v. Stradley, D.C.Mun.App., 119 A.2d 111, 112 (1955); Cohen v. Holmes, D.C.Mun.App., 106 A.2d 147 The nature of a motion for reconsideration is not merely a request that ......
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Coles v. Redskin Realty Co.
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