Stokes v. Peyton's Inc., No. 74-3290
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before BROWN, Chief Judge, and GODBOLD and GEE; GODBOLD |
| Citation | 508 F.2d 1287 |
| Parties | Robert P. STOKES, Plaintiff-Appellant, v. PEYTON'S INC., and Travco Plastics Company, Inc., Defendants-Appellees. |
| Docket Number | No. 74-3290 |
| Decision Date | 13 February 1975 |
Page 1287
v.
PEYTON'S INC., and Travco Plastics Company, Inc.,
Defendants-Appellees.
Foy R. Devine, Thomas J. Hughes, Jr., Atlanta, Ga., for plaintiff-appellant.
John A. Sherrill, Atlanta, Ga., for Peyton Inc.
Neely, Freeman & Hawkins, Atlanta, Ga., for Travco Plastics Co., Inc.
J. Bruce Welch, William Q. Bird, Eugene G. Partain, Daniel M. Coursey, Jr., Atlanta, Ga., for defendants-appellees.
Appeal from the United States district Court for the Northern District of Georgia.
Before BROWN, Chief Judge, and GODBOLD and GEE, Circuit Judges.
GODBOLD, Circuit Judge.
One of the two appellees, Peyton's Inc., has filed a motion to dismiss the appeal on the ground notice of appeal was not timely filed.
This is the sequence of events:
July 18 (1974): judgment entered in favor of appellees.
July 29: appellant filed motion for new trial.
August 13: with motion for new trial pending, appellant filed notice of appeal.
September 17: motion for new trial denied.
September 24: appellant paid his filing fee to this court.
December 9: appellant's beief (printed) filed.
January 10: appellee Peyton filed its brief (printed) and motion to dismiss the appeal.
January 13: appellee Travco filed its brief (printed).
The argument of appellee Peyton's Inc. runs this way: (a) notice of appeal was required to be filed within 30 days of entry of judgment appealed from, Rule 4(a), F.R.Civ.P.; (b) during the time a motion for new trial is pending the running of time for appeal is suspended, and the judgment is not final and thus not appealable until the motion is ruled on. Rule 59; 9 J. Moore, Federal Practice P110.08(3), at 120; (c) since premature, the appeal sought to be taken on August 13 is a nullity. Turner v. HMH Publishing Co., 328 F.2d 136 (CA 5, 1964); Stevens v. Turner, 222 F.2d 352, 354 (CA 7, 1955); Studer v. Moore, 153 F.2d 902 (CA 2, 1946); (d) no notice of appeal was filed within 30 days of September 17. Thus this court lacks jurisdiction of the appeal.
The per curiam opinion in Turner v. HMH supports appellee's motion. But we think the correct rule is that of the later and carefully considered opinion by Judge Thornberry in Markham v. Holt,
Page 1288
369 F.2d 940 (CA 5, 1966). 1 In that case the court entered an order granting motions for summary judgment on July 16. Appellant filed notice of appeal on August 6, noticing appeal from the July 16 'final order and/or judgmnet.' On August 10 the court by separate document filed the actual judgment. We held:This Court has consistently adhered to the policy of exercising all proper means to prevent the loss of...
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Edwards v. Sea-Land Service, Inc., SEA-LAND
...The requirements of Rule 58 may be satisfied by the district court after an appeal is docketed. Stokes v. Peyton's Inc., 5 Cir. 1975, 508 F.2d 1287; Markham v. Holt, 5 Cir. 1966, 369 F.2d 940; Bates v. Batte, 5 Cir. 1951, 187 F.2d 142, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. Kirtl......
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Griggs v. Provident Consumer Discount Company, 82-5082
...946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978); Dougherty v. Harper's Magazine Co., 537 F.2d 758, 762 (CA3 1976); Stokes v. Peyton's Inc., 508 F.2d 1287 (CA5 1975); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (CA9 1971). Cf. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). But see......
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Hutchinson v. Hutchinson
...of the notice of appeal, we will not avoid a decision on the merits on the basis of such a technicality. Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir. 1975). 9 Moore, Federal Practice, par. 204.14 (2d ed. 1975). See Keohane v. Swarco, Inc., 320 F.2d 429, 432 (6th Cir. 1963), and Firchau ......
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Kirtland v. J. Ray McDermott & Co., 76-2511
...The requirements of Rule 58 may be satisfied by the district court after an appeal is docketed. Stokes v. Petyon's Inc., 5 Cir. 1975, 508 F.2d 1287; Markham v. Holt, 5 Cir. 1966, 369 F.2d 940; Bates v. Batte, 5 Cir. 1951, 187 F.2d 142, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616. ......
-
Edwards v. Sea-Land Service, Inc., SEA-LAND
...The requirements of Rule 58 may be satisfied by the district court after an appeal is docketed. Stokes v. Peyton's Inc., 5 Cir. 1975, 508 F.2d 1287; Markham v. Holt, 5 Cir. 1966, 369 F.2d 940; Bates v. Batte, 5 Cir. 1951, 187 F.2d 142, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. Kirtl......
-
Griggs v. Provident Consumer Discount Company, 82-5082
...946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978); Dougherty v. Harper's Magazine Co., 537 F.2d 758, 762 (CA3 1976); Stokes v. Peyton's Inc., 508 F.2d 1287 (CA5 1975); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (CA9 1971). Cf. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). But see......
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Hutchinson v. Hutchinson
...of the notice of appeal, we will not avoid a decision on the merits on the basis of such a technicality. Stokes v. Peyton's Inc., 508 F.2d 1287 (5th Cir. 1975). 9 Moore, Federal Practice, par. 204.14 (2d ed. 1975). See Keohane v. Swarco, Inc., 320 F.2d 429, 432 (6th Cir. 1963), and Firchau ......
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Kirtland v. J. Ray McDermott & Co., 76-2511
...The requirements of Rule 58 may be satisfied by the district court after an appeal is docketed. Stokes v. Petyon's Inc., 5 Cir. 1975, 508 F.2d 1287; Markham v. Holt, 5 Cir. 1966, 369 F.2d 940; Bates v. Batte, 5 Cir. 1951, 187 F.2d 142, cert. denied, 342 U.S. 815, 72 S.Ct. 29, 96 L.Ed. 616. ......