Wagoner v. Fairview Consolidated School District No. 5

Tenth Circuit

Wagoner v. Fairview Consolidated School District No. 5

289 F.2d 480, 4 Fed. R. Serv. 2d 1072, 1961 U.S. App. LEXIS 4788

Court of Appeals for the Tenth Circuit·Decided April 18, 1961·No. No. 6580·Published·Cited by 7 cases

Opinion

PER CURIAM.

The plaintiff-appellants are here seeking an appeal from the order of the District Court dismissing their complaints.

The record discloses that the court entered its order dismissing the actions on July 20, 1960. A motion for new trial was filed more than 10 days thereafter and overruled on the same date. The Clerk of the District Court received plaintiffs’ notice of appeal on September 3, 1960, and more than 30 days from the date of the order of dismissal.

Rule 59(b), F.R.Civ.P. 28 U.S. C.A., states that “a motion for a new trial shall be served not later than 10 days after the entry of the judgment.” And, Rule 73(a) states that a notice of appeal shall be filed within 30 days from the entry of the judgment or within 30 days from an order denying a motion for new trial. And, a timely notice of appeal is a jurisdictional prerequisite. Martin v. United States, 10 Cir., 263 F.2d 516; Lobato v. Pay Less Drug Stores, 10 Cir., 261 F.2d 406; Stone v. Wyoming Supreme Court, 10 Cir., 236 F.2d 275; Schlink v. C & O Ry. Co., 6 Cir., 276 F.2d 116. Here the notice of appeal was filed within 30 days from the denial of the motion for new trial, but since the motion for the new trial was untimely, it did not extend the time for taking the appeal. See 7 Moore’s Federal Practice § 73.09 (4), p. 3142; Lujan v. United States, 10 Cir., 204 F.2d 171.

Apparently the plaintiffs did notify the District Court Clerk, prior to the expiration of the 10-day period, that it was their intention to file a motion for new trial. However, the motion was not filed within that period and an intention to file it is ineffectual to extend the time for appeal.

The appeal must therefore be dismissed for lack of jurisdiction.

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PER CURIAM.

The plaintiff-appellants are here seeking an appeal from the order of the District Court dismissing their complaints.

The record discloses that the court entered its order dismissing the actions on July 20, 1960. A motion for new trial was filed more than 10 days thereafter and overruled on the same date. The Clerk of the District Court received plaintiffs’ notice of appeal on September 3, 1960, and more than 30 days from the date of the order of dismissal.

Rule 59(b), F.R.Civ.P. 28 U.S. C.A., states that “a motion for a new trial shall be served not later than 10 days after the entry of the judgment.” And, Rule 73(a) states that a notice of appeal shall be filed within 30 days from the entry of the judgment or within 30 days from an order denying a motion for new trial. And, a timely notice of appeal is a jurisdictional prerequisite. Martin v. United States, 10 Cir., 263 F.2d 516; Lobato v. Pay Less Drug Stores, 10 Cir., 261 F.2d 406; Stone v. Wyoming Supreme Court, 10 Cir., 236 F.2d 275; Schlink v. C & O Ry. Co., 6 Cir., 276 F.2d 116. Here the notice of appeal was filed within 30 days from the denial of the motion for new trial, but since the motion for the new trial was untimely, it did not extend the time for taking the appeal. See 7 Moore’s Federal Practice § 73.09 (4), p. 3142; Lujan v. United States, 10 Cir., 204 F.2d 171.

Apparently the plaintiffs did notify the District Court Clerk, prior to the expiration of the 10-day period, that it was their intention to file a motion for new trial. However, the motion was not filed within that period and an intention to file it is ineffectual to extend the time for appeal.

The appeal must therefore be dismissed for lack of jurisdiction.

Wagoner v. Fairview Consolidated School District No. 5, 289 F.2d 480, 4 Fed. R. Serv. 2d 1072, 1961 U.S. App. LEXIS 4788 (10th Cir. 1961).

Pincite

289 F.2d 480 (Wagoner v. Fairview Consolidated School District No. 5) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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