Winchell v. Lortscher

• Decision Date: 22 May 1967
• Docket Number: No. 18603.,18603.
• Parties: Kenneth H. WINCHELL, Appellant, v. David LORTSCHER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

377 F.2d 247 (1967)

Kenneth H. WINCHELL, Appellant, v. David LORTSCHER, Appellee.

No. 18603.

United States Court of Appeals Eighth Circuit.

May 22, 1967.

COPYRIGHT MATERIAL OMITTED

Martin A. Cannon, Omaha, Neb., for appellant.

John J. Higgins, Jr., Omaha, Neb., for appellee.

Before VOGEL, Chief Judge, and GIBSON and HEANEY, Circuit Judges.

VOGEL, Chief Judge.

Plaintiff-appellant, Kenneth H. Winchell, commenced this action in Federal District Court on December 10, 1963, claiming a breach by defendant-appellee, David Lortscher, of a grain storage contract. On December 20, 1963, defendant-appellee moved to dismiss on several grounds, one of them being that the same issues had previously been litigated between the same parties in the District Court of Pawnee County, Nebraska, and that judgment therein entered in favor of appellee Lortscher is res judicata in the instant action. Motion to dismiss was overruled on May 12, 1964. Appellee Lortscher thereupon filed an answer to the complaint in which he again alleged that by reason of the previous adjudication, the issues therein raised were res judicata. Upon that ground he then subsequently moved for a summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.

On March 14, 1966, defendant-appellee's motion for summary judgment was granted by the District Court, which found that the doctrine of res judicata applied in that the issues raised had been previously tried by the District Court of Pawnee County, Nebraska.

On March 23, 1966, plaintiff-appellant moved the District Court for a new trial on the grounds that the order granting summary judgment was not sustained by the evidence and was contrary to law.

On July 26, 1966, the District Court overruled the motion for a new trial.

On August 2, 1966, appellant's attorney received notice of the entry of this final appealable order.

On September 26, 1966, plaintiff-appellant moved the District Court for an extension of time for appeal. Such motion was based on plaintiff-appellant's affidavit and testimony to the effect that while his counsel learned of the entry of judgment on August 2, 1966, he, the plaintiff-appellant, did not receive notice until September 25, 1966, "since the plaintiff was continuously traveling throughout this country and abroad during the period in question". The motion was resisted by the defendant-appellee. The District Court, while finding "* * the testimony of the plaintiff far from satisfactory and lacking in credibility", nevertheless determined that plaintiff's delay in taking his appeal was the result of excusable neglect, granted the motion and extended the time of appeal to the day of the hearing, September 26, 1966, which was the sixtieth day following the overruling of plaintiff-appellant's motion for new trial.¹ On the same day plaintiff-appellant filed notice of appeal. Defendant-appellee cross-appealed, claiming that the District Court erred in extending the time for filing a notice of appeal. Because we find the notice of appeal herein was not timely and the District Court erred in granting the motion for extension of time to appeal, we do not reach the questions raised in the main case.

A detailed recital of the procedural steps followed in this case is deemed necessary because the critical question presented herein is whether a timely appeal was made to this court within the meaning of Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A. Appeal to the Court of Appeals is governed by Rule 73 (a), as amended February 28, 1966, effective July 1, 1966, which provides in pertinent part as follows:

"How and When Taken. An appeal permitted by law from a district court to a court of appeals shall be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment appealed from, except that: (1) in any action in which the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days from such entry; (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; * * *. The running of the time for appeal is terminated as to all parties by a timely motion made by any party pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: * * * denying a motion for a new trial under Rule 59.

"Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. * * *" (Emphasis supplied.)

As can be seen from the above-recited facts, the District Court denied the motion for a new trial on July 26, 1966, and it was upon this date that the time for appeal began to run. On September 26, 1966, 60 days after the denial of the motion for a new trial, appellant moved in the District Court for an extension of time within which to appeal and following a hearing in which the motion was resisted by counsel for appellee, such motion was granted. On the same day appellant then filed notice of appeal. The clear dictate of Rule 73(a) is that for a notice of appeal to be timely it must be filed within 30 days following the final disposition of the case unless there is a showing of excusable neglect within the meaning of the rule, whereupon the time for appeal can be extended by the District Court for an additional 30 days.

It is well established that the time requirements set forth within Rule 73(a) within which an appeal must be taken are mandatory and jurisdictional. See, Young v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 8 Cir., 1966, 369 F.2d 502, 504; Barta v. Oglala Sioux Tribe of Pine Ridge Reservation of South Dakota, 8 Cir., 1958, 259 F.2d 553, 555, certiorari denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304; St. Luke's Hospital v. Melin, 8 Cir., 1949, 172 F.2d 532, 533. If notice of appeal is not taken within the 30 days after the final entry of an appealable order provided for in Rule 73 (a), and no effective action is taken to perfect an appeal, then notice is not timely and jurisdiction is destroyed. See, Young v. Chicago, Milwaukee, St. Paul and Pacific R. Co., supra; Cohen v. Curtis Publishing Co., 8 Cir., 1964, 333 F.2d 974, 978, certiorari denied, 380 U.S. 921, 85 S.Ct. 923, 13 L.Ed.2d 808, rehearing denied, 380 U.S. 989, 85 S.Ct. 1351, 14 L.Ed.2d 283. If effective action is taken to protect the right of appeal under Rule 73(a), it is possible for the District Court to extend the time within which a notice of appeal may be filed an additional 30 days after the expiration of the original 30 days, making a total of 60 days after the final entry of an appealable order but in no event may there be an extension beyond the 60 days. See, Plant Economy, Inc. v. Mirror Insulation Co., 3 Cir., 1962, 308 F.2d 275, 278; Edwards v. Doctors Hospital, 2 Cir., 1957, 242 F.2d 888, 890-891, certiorari denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761. A motion for extension of time to appeal may be made in the District Court either before or after the expiration of the original 30 days. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 1962, 371 U.S. 215, 216-217, 83 S.Ct. 283, 9 L.Ed.2d 261. But after the expiration of the original 30 days the District Court may not grant ex parte an extension of time for appeal but must give notice and opportunity to be heard to all adverse parties. Cohen v. Plateau Natural Gas Co., 10 Cir., 1962, 303 F.2d 273, 274, certiorari denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; North Umberland Mining Co. v. Standard Acc. Ins. Co., 9 Cir., 1952, 193 F.2d 951, 952. In the abovecited cases the Courts of Appeals found themselves unable to take jurisdiction either because the notice of appeal was filed beyond the absolute 60-day limitation or the extension of time within which to take an appeal was improperly granted by the trial court after the expiration of the original 30-day period in an ex parte proceeding. Neither of these situations is present in the instant case for the motion for an extension of time and the notice of appeal were filed on the sixtieth day after the entry of an appealable order and the motion for an extension of time was granted after an adversary hearing, although there may be some question here as to whether appellee personally received notice of this twelfth hour proceeding. Therefore this case, unlike those previously cited, squarely presents the problem of whether there was, as a matter of law, any grounds for granting an extension of time for an appeal beyond the original 30 days after the entry of the appealable order, as provided for in Rule 73(a). It is a fundamental necessity that the moving party show clearly the existence of a valid ground for an extension of time for appeal, because in the absence of such a showing, a simple compliance with the maximum 60-day time limitation and the hearing requirement at time of extension of appeal time is of no avail. Although the power to extend the time of appeal an additional 30 days from the expiration of the original 30 days rests solely in the District Court, the District Court may not exercise such power unless grounds for an extension of appeal time within the meaning of Rule 73(a) are first clearly established.

Rule 73(a), as amended, now provides simply:

"* * * (2) upon a showing of excusable neglect the district court in any action may extend the time for filing the notice of appeal not exceeding 30 days from the expiration of the original time herein prescribed; * * *"

thereby omitting the words "based upon a failure of a party to learn of the...