Lejeune Et Ux. v. Midwestern Ins. Co. Of Oklahoma City, Okl

197 F.2d 149, 1952 U.S. App. LEXIS 2593

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 5, 1952
• Docket: 14071_1
• Status: Published

Opinion

PER CURIAM.

Calling to our attention the fact that a summary judgment was entered against plaintiff on January 23, 1952, while the notice of appeal was not filed until February 25, 1952, more than thirty days thereafter, appellee, defendant below, moves to dismiss the appeal for want of jurisdiction. Rule 73(a) and (b), Federal Rules of Civil Procedure, 28 U.S.C.A.

Appellants concede that the facts are as stated in appellee’s motion and that, under rule 6 of the Federal Rules of Civil Procedure, the last day on which the plaintiffs could have given their notice of intention to appeal fell on February 23, 1952. They contend, though, that the notice of appeal was timely because, though not filed until February 25th, it was placed in the United States Post Office in Lafayette, Louisiana, for mailing, on February 23rd.

Urging upon us that this was a compliance with the rule, they insist that to hold otherwise would in effect give more time for appealing to persons living in the same place with the clerk than to persons living at other places.

We cannot agree. In Louisiana Discount Corp. v. Commissioner, 5 Cir., 193 F.2d 495, having to do with the filing with the Tax Court of a petition for review, the same claim was made to, and rejected by this court, on the authority of Poynor v. Commissioner, 5 Cir., 81 F.2d 521.

The motion to dismiss is granted and the cause is dismissed. Cf. Martin v. Hess, 6 Cir., 176 F.2d 834, 835; Lamb v. Shasta Oil Co., 5 Cir., 149 F.2d 729.