Sleek v. PENNEY COMPANY, 13456.
| Decision Date | 27 June 1961 |
| Docket Number | No. 13456.,13456. |
| Citation | 292 F.2d 256 |
| Parties | Josephine Ann SLEEK, Appellant v. J. C. PENNEY COMPANY, Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
Charles Alan Wright, Austin, Tex. (James E. McLaughlin, McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for appellant.
Bruce R. Martin, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
On March 3, 1960, the District Court entered a default order dismissing this personal injury action with prejudice because of the failure of the appellant, plaintiff below, to file her Pre-trial Statement within the time prescribed by the court in the last of a series of orders. On April 2, 1960, appellant filed a motion under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C., to set aside the dismissal on the ground that default had resulted from excusable neglect, and on June 28, 1960, the court denied that motion. On July 25, 1960, appellant filed an extensive motion for reargument of the motion to set aside the dismissal. On the same day the court entered a formal order reciting that "it is hereby ORDERED AND DECREED that the within matter be scheduled for re-argument". Subsequently the matter was in fact reargued. On September 30, 1960, the trial judge handed down a memorandum opinion deciding that, because the July 25th motion for reargument was filed more than ten days after the June 28th order, the court lacked legal power to take any further action with reference to its June 28th ruling. This opinion was implemented by an order of September 30th, which vacated the order granting reargument and instead denied reargument. Notice of appeal was filed October 24th.
Appellee urges that this appeal was taken out-of-time and must, therefore, be dismissed. This jurisdictional question depends upon the correctness of the ruling below that the motion for reargument was filed too late.
Normally, when a party aggrieved by an appealable order files a timely motion for a rehearing, and certainly when the court responds by ordering reargument, the underlying adjudication loses finality pending some new dispositive action by the court. Leishman v. Associated Wholesale Electric Co., 1943, 318 U.S. 203, 63 S.Ct. 543, 87 L. Ed. 714; Kelly v. Pennsylvania R. R., 3 Cir., 1955, 228 F.2d 727.
Neither party disputes this. Moreover, both parties recognize that the order of June 28th denying relief requested under Rule 60(b) was an appealable order. Cf. Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F. 2d 242. However, appellee claims that in this case, as in Behr v. Mine Safety Appliances Co., 3 Cir., 1956, 233 F.2d 371, and Raughley v. Pennsylvania R. R., 3 Cir., 1956, 230 F.2d 387, the motion for further action with reference to the adjudicated matter was untimely, with the result that the court's order directing rehearing was beyond its power and had no effect on the running of appeal time. Appellant, on the other hand, contends that the situation here is not essentially different from that in the Kelly case.
We think this case is distinguishable from the Behr and Raughley cases. In both of those cases the underlying decisions which were attacked by motions to reconsider were principal judgments in which courts sitting without juries had disposed of the substantive claims in lawsuits. This court viewed these motions as in substance motions either for a new trial under Rule 59(a) (2) or to alter and amend a judgment under Rule 59 (e). Rule 59 expressly limits the time for filing such motions to a period of ten days after the entry of the questioned judgment.
Unquestionably Rule 59 limits strictly the time for the ordinary and often almost routine post-judgment motions which interrupt the running of appeal time and thus, in practical effect, postpone the finality of the judgment. But, as the draftsmen of the rules have expressly stated, this Rule was not to prescribe or...
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...order were therefore timely. Leishman v. Associated Electric Co., 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943); Sleek v. J. C. Penney Co., 292 F.2d 256 (3d Cir. 1961). Plaintiffs also point out that the order appealed from will be in effect only until November 30, 1977, by which time "it......
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