Steward v. Atlantic Refining Company

Citation235 F.2d 570
Decision Date09 July 1956
Docket NumberNo. 11883-11886.,11883-11886.
PartiesGeorge W. STEWARD, Jr., Appellant, v. The ATLANTIC REFINING COMPANY Defendant and Third-Party Plaintiff, TERMINAL TRANSPORT COMPANY and Charles T. Banks, Third-Party Defendants. Elmer ROBINSON, Appellant, v. The ATLANTIC REFINING COMPANY, Defendant and Third-Party Plaintiff, TERMINAL TRANSPORT COMPANY and Charles T. Banks, Third-Party Defendants. Kenneth DAVIS, Appellant, v. The ATLANTIC REFINING COMPANY, Defendant and Third-Party Plaintiff, TERMINAL TRANSPORT COMPANY and Charles T. Banks, Third-Party Defendants. Edward W. HULTZ, Appellant, v. The ATLANTIC REFINING COMPANY, Defendant and Third-Party Plaintiff, TERMINAL TRANSPORT COMPANY and Charles T. Banks, Third-Party Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

George E. Beechwood, Philadelphia, Pa., for appellants.

Otto Wolff, Jr., Philadelphia, Pa., for The Atlantic Refining Co.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Appellee has moved to dismiss these appeals as premature, on the ground that certain motions remain undetermined in the district court. Judgments were there entered for defendant-appellee on December 15, 1955. On December 24, 1955 appellants filed a motion to set aside the jury's answers to interrogatories, motion for new trial, and motion to set aside the judgments in favor of the defendant and to enter judgments in favor of the plaintiffs. Those motions were not served on appellee until December 28, 1955, more than ten days after the judgments had been entered. On January 4, 1956 it moved to strike them as served out of time. While the latter motions were still pending appellants, on January 13, 1956, filed notices of appeal.

The motion to dismiss (applying to all four appeals) is founded on the theory that in order for this court to have jurisdiction the face of the docket must show the filed motions have been disposed of by definite orders made and entered in due form. The docket in these cases shows the motions filed but nothing further regarding them. Accordingly, it is argued, the appeals are subject to dismissal.

The motions to set aside the jury's answers to the court's interrogatories come under Rule 52(b), 28 U.S.C., to amend the findings of the trial court. Greenwood v. Greenwood, 3 Cir., 234 F. 2d 276. As such they must be served not later than ten days after the entry of the judgments, Rule 59(e). The motions for a new trial under (b) of Rule 59 must also be served not later than ten days after the entry of the judgments and the motion to set the judgments aside and enter judgments in favor of the plaintiffs is one "to alter * * * the judgment" therefore directly within Rule 59(e) and subject to the ten day service directive. The only valid motion to obtain the stated objectives is one that has been served in accordance with Rule 59(b) and (e). The mere record of the filing of such motions does not necessarily of itself defeat an appeal taken within the proper time. In the present matter the docket does not show these motions to have been served at all, and neither side contends that timely service was obtained. Accordingly, their bare filing, under the particular facts, is insufficient to make them other than nullities for by Rule 6(b) the time allowed for service of motions for a new trial under Rule 59(b) and (e) may not be extended.

To support its theory, appellee cites Green v. Reading Co., 3 Cir., 1950, 180 F. 2d 149 and Healy v. Pennsylvania Railroad Co., 3 Cir., 1950, 181 F.2d 934, but those actions concededly involved motions timely served. And service within the time fixed is all important under Rule 73(a). Our recent opinion in Raughley v. Pennsylvania Railroad Co., 3 Cir., 1956, 230 F.2d 387 is controlling on this precise issue. There we said at pages 389 and 390:

"* * * 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 do so. 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."

In Raughley we were dealing with the requirement of Rule 7(b) (1) that a motion be in writing. Here, we must go a step further in the same orbit and for the identical reason of keeping the federal courts a going concern. The strong language the Court of Appeals for the Second Circuit...

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16 cases
  • Starns v. Avent
    • United States
    • U.S. District Court — Middle District of Louisiana
    • 24 d2 Janeiro d2 1989
    ...Cir.1985); Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir.1980); Flint v. Howard, 464 F.2d 1084 (1st Cir.1972); Steward v. Atlantic Ref. Co., 235 F.2d 570 (3d Cir.1956); Torockio v. Chamberlain Mfg. Co., 56 F.R.D. 82, 85 n. 6 (W.D.Pa.1972), aff'd without opinion, 474 F.2d 1340 (3d Cir.1973......
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    ...the court relies do not address whether Rule 6(e) extends the time for filing a motion for reconsideration. One opinion, Steward v. Atlantic Refining Co., 235 F.2d 570 (3d Cir. 1956), holds that the mere filing with the court, without service upon the opposing parties, of a motion for a new......
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    ... ... See Stewart v. Atlantic Ref. Co., 235 F.2d 570, 571 (3d Cir ... Page 266 ... 1956); ... The fact that the Atlantic Monthly Company had no employees, property or shareholders and had not been licensed to do ... ...
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    • 23 d2 Março d2 1965
    ...a nullity in the trial court, but it does not interfere with the appellate court's jurisdiction if timely appealed. Steward v. Atlantic Refining Company, 3 Cir., 235 F.2d 570. However, it has never been held by any court that strict compliance with the part of Rule 5(d) with regard to the e......
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