Rudolph v. Sullivan

D.C. Circuit

Rudolph v. Sullivan

277 F. 863, 51 App. D.C. 228, 1922 U.S. App. LEXIS 2805

CourtCourt of Appeals for the D.C. Circuit

DecidedJanuary 3, 1922

DocketNo. 3638

StatusPublished

Cited by1 cases

This text of 277 F. 863 (Rudolph v. Sullivan) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rudolph v. Sullivan, 277 F. 863, 51 App. D.C. 228, 1922 U.S. App. LEXIS 2805 (D.C. Cir. 1922).

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Opinion

VAN ORSDEE, Associate Justice.

This appeal is from a judgment of the Supreme Court of the District of Columbia granting a peremptory writ of mandamus requiring the commissioners of the District to reinstate in office appellee, a police officer.

At the outset, we are confronted with a motion to dismiss or affirm, on the ground that the appeal was not taken in time. The writ was issued on February 21, 1921, and appeal was not taken until March 23d. In the meantime, the order of the court had been complied with, and appellee, Sullivan, had been reinstated in his office. Appellants filed a motion to quash the writ, which was overruled on March 18th, [864]*864“with leave to defendants to file such proceedings as advised within 10 days hereof.” It is urged that this order extended the time within which appellants were required to take their appeal.

We are not impressed with this contention. The only appealable order was the one granting the writ, and it is the order here appealed from. A motion to quash will not stay the period within which, under the. rule, the appeal must be taken. It is held that a motion for a new trial, unless made necessary by statute or rule of court as a basis for review of the judgment in the appellate court, does not suspend the running of the limitation of time within which appeal must he taken. In such cases the ruling on the motion is not necessary to attach the character of finality to the judgment.

Applying this test, we think a motion to quash a writ of mandamus after judgment will not suspend the running of the time allowed for taking appeal. A ruling on such a motion is not essential to make the judgment final.

The judgment is affirmed, with costs.

Affirmed.

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VAN ORSDEE, Associate Justice.

This appeal is from a judgment of the Supreme Court of the District of Columbia granting a peremptory writ of mandamus requiring the commissioners of the District to reinstate in office appellee, a police officer.

At the outset, we are confronted with a motion to dismiss or affirm, on the ground that the appeal was not taken in time. The writ was issued on February 21, 1921, and appeal was not taken until March 23d. In the meantime, the order of the court had been complied with, and appellee, Sullivan, had been reinstated in his office. Appellants filed a motion to quash the writ, which was overruled on March 18th, [864]*864“with leave to defendants to file such proceedings as advised within 10 days hereof.” It is urged that this order extended the time within which appellants were required to take their appeal.

We are not impressed with this contention. The only appealable order was the one granting the writ, and it is the order here appealed from. A motion to quash will not stay the period within which, under the. rule, the appeal must be taken. It is held that a motion for a new trial, unless made necessary by statute or rule of court as a basis for review of the judgment in the appellate court, does not suspend the running of the limitation of time within which appeal must he taken. In such cases the ruling on the motion is not necessary to attach the character of finality to the judgment.

Applying this test, we think a motion to quash a writ of mandamus after judgment will not suspend the running of the time allowed for taking appeal. A ruling on such a motion is not essential to make the judgment final.

The judgment is affirmed, with costs.

Affirmed.

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Bluebook (online)

277 F. 863, 51 App. D.C. 228, 1922 U.S. App. LEXIS 2805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudolph-v-sullivan-cadc-1922.

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