Silverton v. Valley Transit Cement Company, 15055.
| Decision Date | 17 September 1956 |
| Docket Number | No. 15055.,15055. |
| Citation | 237 F.2d 143 |
| Parties | Beaumont SILVERTON, individually and as a member, representative and Secretary of Teamsters Local Union No. 898, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and the American Federation of Labor, Appellant, v. VALLEY TRANSIT CEMENT COMPANY, Inc., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John A. Stevenson, Lionel Richman, Los Angeles, Cal., for appellants.
Horton & Knox, James H. Carter, El Centro, Cal., for appellee.
Before DENMAN, Chief Judge, HASTIE, Circuit Judge, and TOLIN, District Judge.
This is a motion by appellee to dismiss an appeal from a judgment of the United States District Court for the Southern District of California, Southern Division, for failure to file notice of appeal within thirty days following the entry of the judgment on December 19, 1955. The motion was submitted on the transcript of the record and the affidavits filed on behalf of each party.
The question is whether any of the clerks in the office of the clerk of the court below acquired custody on or before January 18, 1956 of a notice of appeal from Silverton, such receipt by the clerk or a deputy being all that is required to establish jurisdiction in this court. Kahler-Ellis Co. v. Ohio Turnpike Comm., 6 Cir., 1955, 225 F.2d 922; Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915.
To support the contention of lack of jurisdiction, appellee points to page 37 of the transcript where appears Silverton's notice of appeal dated January 17, 1956 and having attached to it an affidavit of its mailing to the appellee, executed before a Los Angeles notary public who dated his certificate January 17, 1956. This notice of appeal with its attached certificate is endorsed by the clerk as "Filed January 25, 1956." It is not questioned that it is the time the clerk received custody of the notice of appeal and not the clerk's mark or entries which determine whether the appeal is valid. Kahler-Ellis Co. v. Ohio Turnpike Comm., supra; Casalduc v. Diaz, supra.
Appellee relies on the rebuttable presumption that the clerk had properly performed his duty and put his filing mark on the date the notice was delivered to him. This is a presumption which disappears when substantial evidence to the contrary is produced. New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171, 58 S.Ct. 500, 82 L.Ed. 726.
Silverton's contention is that the notice of appeal was in fact received by the clerk on January 18, 1956 and that the file mark must have been delayed by the clerk which caused its later date.
He offers two affidavits of one of his attorneys, Lionel Richman. In the first of these Richman testified, as follows: That on January 17, 1956 he mailed in Los Angeles to the clerk of the court in Los Angeles a notice of appeal dated January 17, 1956; that on January 18, 1956 he received a telephone call from a person stating that he was a deputy clerk of the court who stated that since the judgment was rendered by the court sitting in the Southern (that is the San Diego) Division, a copy of the notice of appeal they had received was required to be filed in San Diego; that Richman asked whether this was required at once, for, if it were, he, having his office in Los Angeles would personally prepare and deliver it immediately to the clerk. The person telephoning informed Richman that it was not necessary and that the copy could be mailed in the next few days, which Richman did on January 24, 1956. It is not this copy upon which the date of January 25, 1956 is marked but the original with the notary's certificate of the affidavit of service, dated January 17, 1956.
Richman further testified in his second affidavit, filed July 20, 1956, that is six months since his telephone conversation with the clerk, that he sought among the deputy clerks of the court the clerk who talked to him over the telephone, and frankly stated he was unable to locate him. The records of the Administrative Office of the United States Courts show that there are 39 such deputy clerks in Los Angeles alone.
Richman further testified that the day after he mailed his notice of appeal, he mailed to the clerk his designation of record...
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