Kahler-Ellis Company, Etc. v. The Ohio Turnpike Commission and the Ohio National Bank

Sixth Circuit

Kahler-Ellis Company, Etc. v. The Ohio Turnpike Commission and the Ohio National Bank

225 F.2d 922

Court of Appeals for the Sixth Circuit·Decided September 12, 1955·No. 12634·Published·Cited by 30 cases

Opinion

STEWART, Circuit Judge.

This cause came on to be heard on ap-pellee’s motion to dismiss the appeal on the ground that this court is without jurisdiction to hear the appeal because notice of appeal was not timely filed.

Judgment was entered June 2, 1955. On July 2, counsel for appellant deposited the notice of appeal in the mails. The clerk of court received the notice on July 5.

Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., .requires that notice be filed within thirty days of the entry of judgment. Here, only the act of depositing the notice in the mails occurred within thirty days. This is not a filing; only when the clerk acquires custody has it been filed. Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915; Lejeune v. Midwestern Ins. Co., 5 Cir., 1952, 197 F.2d 149; see also Gradsky v. Commissioner, 6 Cir., 1954, 218 F.2d 703. Since the notice of appeal is jurisdictional, the motion to dismiss must be granted. Marten v. Hess, 6 Cir., 1949, 176 F.2d 834.

It is, accordingly, ordered that the appeal in the above case be and the same is hereby dismissed.

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STEWART, Circuit Judge.

This cause came on to be heard on ap-pellee’s motion to dismiss the appeal on the ground that this court is without jurisdiction to hear the appeal because notice of appeal was not timely filed.

Judgment was entered June 2, 1955. On July 2, counsel for appellant deposited the notice of appeal in the mails. The clerk of court received the notice on July 5.

Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., .requires that notice be filed within thirty days of the entry of judgment. Here, only the act of depositing the notice in the mails occurred within thirty days. This is not a filing; only when the clerk acquires custody has it been filed. Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915; Lejeune v. Midwestern Ins. Co., 5 Cir., 1952, 197 F.2d 149; see also Gradsky v. Commissioner, 6 Cir., 1954, 218 F.2d 703. Since the notice of appeal is jurisdictional, the motion to dismiss must be granted. Marten v. Hess, 6 Cir., 1949, 176 F.2d 834.

It is, accordingly, ordered that the appeal in the above case be and the same is hereby dismissed.

Kahler-Ellis Company, Etc. v. The Ohio Turnpike Commission and the Ohio National Bank, 225 F.2d 922 (6th Cir. 1955).

Pincite

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Opinion

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