United States v. New National Coal & Mining Co.
| Citation | 72 F.2d 168 |
| Decision Date | 12 July 1934 |
| Docket Number | No. 5188.,5188. |
| Parties | UNITED STATES v. NEW NATIONAL COAL & MINING CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul F. Jones, of Danville, Ill., and J. Fred Gilster, of East St. Louis, Ill., for the United States.
Chase Morsey, of St. Louis, Mo., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Appellee moves to dismiss the appeal because of appellant's alleged noncompliance with title 28, ß 230, U. S. C. (28 USCA ß 230), providing that no appeal shall be allowed unless application therefor be duly made within three months after the entry of the judgment or decree, and for noncompliance with rule X of this court, which provides:
The facts appearing from the record are:
September 16, 1933, judgment against appellant was entered.
November 3, 1933, appellant filed with the clerk of District Court notice that it would appeal from the District Court to the United States Circuit Court of Appeals for the Seventh Circuit.
February 21, 1934, appellant filed with clerk of District Court petition to grant an appeal from the judgment. The petition is dated November 2, 1933, and has an affidavit attached stating that on November 2, 1933, notice was mailed to East St. Louis, Ill., addressed to appellee's attorney.
February 21, 1934, appellant's assignment of errors was filed with the clerk of the District Court.
February 21, 1934, the District Court entered an order allowing the appeal and directing certified transcript to be transmitted.
February 21, 1934, prÊcipe for record was filed with the District Court.
It thus appears that well over five months elapsed between the date of judgment and the date of filing assignment of errors and entering order allowing appeal. Also that more than three and one-half months elapsed between filing of the notice of and motion for appeal and the date of the allowance of appeal and filing of assignment of errors.
Appeal is granted to a losing party on condition that he complies with the terms of the law whereby it is authorized. It is he who seeks relief from the operation of a judgment or decree against him, and it devolves on him to act to that end. Merely declaring that he will appeal does not of itself amount to taking an appeal; nor does the mere filing of a petition for...
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Benitez v. Bank of Nova Scotia
...& Marx, supra, 40 F.2d at page 872; Vaughan v. American Insurance Co., supra, 15 F.2d at page 527; United States v. New National Coal & Mining Co., 1934, 7 Cir., 72 F.2d 168, where the court said, "Merely declaring that he will appeal does not of itself amount to taking an Furthermore, the ......
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Robertson v. Morganton Full Fashioned Hosiery Co.
...power to alter it. Collins v. United States, 8 Cir., 24 F.2d 823; Stradford v. Wagner, 10 Cir., 64 F.2d 749; United States v. New National Coal & Mining Co., 7 Cir., 72 F.2d 168. But the requirements of the statute, 28 U.S.C.A. § 862, with regard to the issuance of citation and the filing o......
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McCrone v. United States
...of an appeal. See Share v. United States, 8 Cir., 50 F.2d 669; Von Holt v. Carter, 9 Cir., 56 F.2d 61; United States v. New National Coal & Mining Co., 7 Cir., 72 F.2d 168; Ross v. White, 6 Cir., 32 F.2d 750. Indeed, appellant does not contend that there was anything equivalent to an applic......
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United States ex rel. Lutz v. Ragen
...relief from the operation of a judgment or decree against him, and it devolves upon him to act to that end. United States v. New National Coal & Mining Co., 7 Cir., 72 F.2d 168. By statute, 28 U.S.C.A. § 230,1 the time for taking an appeal in this case was limited to three months. While we ......