Bernard M. Shotkin v. Nolan Popenhager and His Wife, Estelle Popenhager

Fifth Circuit

Bernard M. Shotkin v. Nolan Popenhager and His Wife, Estelle Popenhager

255 F.2d 100

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 11, 1958

Docket17079

StatusPublished

Cited by3 cases

This text of 255 F.2d 100 (Bernard M. Shotkin v. Nolan Popenhager and His Wife, Estelle Popenhager) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bernard M. Shotkin v. Nolan Popenhager and His Wife, Estelle Popenhager, 255 F.2d 100 (5th Cir. 1958).

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Opinion

PER CURIAM.

This is an appeal from a judgment of the District Court dismissing plaintiff’s complaint for lack of federal jurisdiction. It being apparent from the record that plaintiff’s notice of appeal was not timely, being filed after the 30 days prescribed by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the merits of the judgment of the District Court need not be discussed.

The complaint, filed on June 18, 1957, was dismissed by the Court with prejudice on July 25, 1957. On August 6, 1957 the District Court denied plaintiff’s motion for rehearing, and it was not until September 10, 1957 that the notice of appeal was filed. Since the time requirement of Rule 73(a) is mandatory and jurisdictional, Waddell v. Chicago Land Clearance Commission, 7 Cir., 206 F.2d 748; Deena Products Co. v. United Brick & Clay Workers of America, 6 Cir., 195 F.2d 612, certiorari denied 344 U.S. 822, 73 S.Ct. 21, 97 L.Ed. 640; Marten v. Hess, 6 Cir., 176 F.2d 834, the right of appeal is lost and this appeal must be dismissed.

Appeal dismissed.

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PER CURIAM.

This is an appeal from a judgment of the District Court dismissing plaintiff’s complaint for lack of federal jurisdiction. It being apparent from the record that plaintiff’s notice of appeal was not timely, being filed after the 30 days prescribed by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the merits of the judgment of the District Court need not be discussed.

The complaint, filed on June 18, 1957, was dismissed by the Court with prejudice on July 25, 1957. On August 6, 1957 the District Court denied plaintiff’s motion for rehearing, and it was not until September 10, 1957 that the notice of appeal was filed. Since the time requirement of Rule 73(a) is mandatory and jurisdictional, Waddell v. Chicago Land Clearance Commission, 7 Cir., 206 F.2d 748; Deena Products Co. v. United Brick & Clay Workers of America, 6 Cir., 195 F.2d 612, certiorari denied 344 U.S. 822, 73 S.Ct. 21, 97 L.Ed. 640; Marten v. Hess, 6 Cir., 176 F.2d 834, the right of appeal is lost and this appeal must be dismissed.

Appeal dismissed.

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Bluebook (online)

255 F.2d 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-m-shotkin-v-nolan-popenhager-and-his-wife-estelle-popenhager-ca5-1958.

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