Wolfsohn v. Hankin
Decision Date | 29 May 1963 |
Docket Number | No. 17449.,17449. |
Citation | 321 F.2d 393 |
Parties | Rebecca Simon WOLFSOHN, Executrix of the Estate of Joel David Wolfsohn, deceased, Appellant, v. Gregory HANKIN and Professional Investment Management Company, Appellees. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Fred I. Simon, Silver Spring, Md., for appellant.
No brief was filed and no appearance was entered for appellee Professional Investment Management Company.
Before EDGERTON, Senior Circuit Judge, and WRIGHT and McGOWAN, Circuit Judges.
Petition for Rehearing before the Division Denied August 1, 1963.
Petition for Rehearing En Banc Denied September 18, 1963.
The notice of appeal being untimely filed, this court lacks jurisdiction1 and the appeal must be dismissed.
An order granting summary judgment against appellant was entered May 7, 1962. On May 11th, on motion of appellant, the District Court signed an order purportedly extending appellant's time to move for a rehearing under Rule 59, F.R.Civ.P. On June 11th a motion to vacate and for rehearing was filed, alleging, inter alia, newly discovered evidence. On October 12th appellant's motion for rehearing was denied. On November 3rd appellant filed notice of appeal. Rule 73 (a), F.R.Civ.P.
Under Rule 59(b), F.R.Civ.P., a "motion for a new trial," which term includes a motion for rehearing, must be served "not later than 10 days after the entry of the judgment." This period of time may not be enlarged by the court. Rule 6(b), F.R.Civ.P. Since the appellant's motion for rehearing was not filed until June 11th, 35 days after summary judgment, it came too late to be considered or to interrupt the running of the time for appeal.2 Slater v. Peyser, supra, Note 1. Since appellant did not file her notice of appeal until November 3rd, it came too late to be considered as an appeal from the judgment of May 7th.3 See Rule 73(a), F.R.Civ.P.
Treating appellant's motion of June 11th as one for relief from a final judgment under Rule 60(b), F.R.Civ.P., appeal from the October 12th denial of which would be timely, we still affirm the disposition of the District Court. The motion under Rule 60(b) addresses itself to the sound discretion4 of that court, and, after studying the record as made, including the alleged newly discovered evidence, we find no abuse.
So ordered.
1 Slater v. Peyser, 91 U.S.App.D.C. 314, 200 F.2d 360 (1952); Randolph v. Randolph, 91 U.S.App.D.C. 170, 198 F.2d 956 (1952).
3 Appellant's Notice of Appeal stated that she was appealing from the order of October 12th. Compare Foman v. Davis, 371 U.S. 178, 180-182, 83 S.Ct. 227, 9 L. Ed.2d 222 (1962).
To continue reading
Request your trial-
United Artists Corp. v. La Cage Aux Folles, Inc.
...moved for an extension of time within which to file a motion for rehearing under Rule 59, Fed.R.Civ.P. Wolfsohn v. Hankin, 321 F.2d 393, 394 (D.C.Cir.1963) (per curiam). The district court overlooked Rule 6(b), Fed.R.Civ.P. (prohibiting extensions of time beyond the 10-day period of Rule 59......
-
Pinion v. Dow Chemical, U.S.A.
...Fifth Circuit issued before October 1, 1981.6 The facts and procedural history of Wolfsohn are found in the circuit court opinion, 321 F.2d 393 (D.C.Cir.1963). The Supreme Court's memorandum opinion did not give a statement of facts.7 In Parke-Chapley, the district court made certain statem......
-
Vine v. Beneficial Finance Company
...the motion to reargue was decided. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964), reversing 116 U.S.App.D.C. 127, 321 F.2d 393 (D.C.Cir.1963); Thompson v. Immigration & Naturalization Serv., 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). As to what was brough......
-
FRAIN v. DISTRICT OF COLUMBIA
...of that period. See Wolfsohn v. Hankin, 376 U.S. 203 [84 S.Ct. 699, 11 L.Ed.2d 636] (1964) (per curiam), reversing 116 U.S.App.D.C. 127, 321 F.2d 393 (1963) (per curiam); Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 386, 84 S.Ct. 397, 398, 11L.Ed.2d 404 (1964) (per curiam......
-
Jurisdiction and the federal rules: why the time has come to reform finality by inequitable deadlines.
...of a Rule 59 motion and notice of appeal because the district court erroneously gave an extension based on excusable neglect), rev'g 321 F.2d 393 (D.C. Cir. (106) See generally Philip A. Pucillo, Timeliness, Equity, and Federal Appellate Jurisdiction: Reclaiming the "Unique Circumstances" D......