William I. Cohen v. Plateau Natural Gas Company, Drillers Gas Company, Paul Kitch and Vulcanmaterials Company

Tenth Circuit

William I. Cohen v. Plateau Natural Gas Company, Drillers Gas Company, Paul Kitch and Vulcanmaterials Company

303 F.2d 273, 6 Fed. R. Serv. 2d 1226, 1962 U.S. App. LEXIS 5234

CourtCourt of Appeals for the Tenth Circuit

DecidedMay 1, 1962

Docket6713

StatusPublished

Cited by13 cases

This text of 303 F.2d 273 (William I. Cohen v. Plateau Natural Gas Company, Drillers Gas Company, Paul Kitch and Vulcanmaterials Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

William I. Cohen v. Plateau Natural Gas Company, Drillers Gas Company, Paul Kitch and Vulcanmaterials Company, 303 F.2d 273, 6 Fed. R. Serv. 2d 1226, 1962 U.S. App. LEXIS 5234 (10th Cir. 1962).

Pincite

Opinion

PER CURIAM.

This is an appeal from a summary judgment entered against Appellant in his stockholders’ derivative action against Appellees.

Upon the filing of the notice of appeal, Appellees moved for dismissal on the ground that the notice was untimely. We denied the motion without prejudice to renewal at time of argument on the merits.

The summary judgment was entered on January 11, 1961. The record shows that a copy of the journal entry of judgment was received by Appellant’s local counsel of record in Wichita, Kansas forthwith, and the records of the District Court Clerk show that notice and copies of the journal entry of judgment were mailed to all of the attorneys of record, including David M. Palley, Appellant’s chief counsel in New York City, New York. No attempt to appeal was made by Appellant within the thirty-day period provided by Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A. but on March 8, 1961, after the time for appeal had expired, Mr. Palley filed an affidavit asking the trial court to extend the time for appeal on the ground that, he had not received notice of the entry of judgment. On that date, the trial court issued an ex parte order extending the time to appeal for thirty days and Appellant’s notice of appeal was filed' within the extended time. Appellees’ motion in the trial court to set aside the order extending the time to appeal was denied on the basis that the filing of the notice of appeal had divested that. Court’s jurisdiction.

*274 Under these circumstances, it is extremely doubtful whether, as a matter of law, the “excusable neglect” contemplated by Rule 73(a) was present. See: Nichols-Morris Corporation v. Morris, 2 Cir., 279 F.2d 81. In any event, since the motion in the form of an affidavit for an extension of time in which to appeal was not made within the initial thirty days allowed by Rule 73 (a), the trial court was without power to act without giving notice to all adverse parties. See: Rules 6(b), (d), Federal Rules of Civil Procedure; and North Umberland Mining Company v. Standard Accident Insurance Company, 9 Cir., 193 F.2d 951. The trial court’s ex part order extending the time for appeal was therefore void ab initio, and Appellant’s subsequent notice of appeal was untimely and insufficient to vest this Court with jurisdiction of the appeal. Cf. Sutherland v. Fitzgerald, 10 Cir., 291 F.2d 846.

Accordingly, the appeal is dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

This is an appeal from a summary judgment entered against Appellant in his stockholders’ derivative action against Appellees.

Upon the filing of the notice of appeal, Appellees moved for dismissal on the ground that the notice was untimely. We denied the motion without prejudice to renewal at time of argument on the merits.

The summary judgment was entered on January 11, 1961. The record shows that a copy of the journal entry of judgment was received by Appellant’s local counsel of record in Wichita, Kansas forthwith, and the records of the District Court Clerk show that notice and copies of the journal entry of judgment were mailed to all of the attorneys of record, including David M. Palley, Appellant’s chief counsel in New York City, New York. No attempt to appeal was made by Appellant within the thirty-day period provided by Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A. but on March 8, 1961, after the time for appeal had expired, Mr. Palley filed an affidavit asking the trial court to extend the time for appeal on the ground that, he had not received notice of the entry of judgment. On that date, the trial court issued an ex parte order extending the time to appeal for thirty days and Appellant’s notice of appeal was filed' within the extended time. Appellees’ motion in the trial court to set aside the order extending the time to appeal was denied on the basis that the filing of the notice of appeal had divested that. Court’s jurisdiction.

*274 Under these circumstances, it is extremely doubtful whether, as a matter of law, the “excusable neglect” contemplated by Rule 73(a) was present. See: Nichols-Morris Corporation v. Morris, 2 Cir., 279 F.2d 81. In any event, since the motion in the form of an affidavit for an extension of time in which to appeal was not made within the initial thirty days allowed by Rule 73 (a), the trial court was without power to act without giving notice to all adverse parties. See: Rules 6(b), (d), Federal Rules of Civil Procedure; and North Umberland Mining Company v. Standard Accident Insurance Company, 9 Cir., 193 F.2d 951. The trial court’s ex part order extending the time for appeal was therefore void ab initio, and Appellant’s subsequent notice of appeal was untimely and insufficient to vest this Court with jurisdiction of the appeal. Cf. Sutherland v. Fitzgerald, 10 Cir., 291 F.2d 846.

Accordingly, the appeal is dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

303 F.2d 273, 6 Fed. R. Serv. 2d 1226, 1962 U.S. App. LEXIS 5234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-i-cohen-v-plateau-natural-gas-company-drillers-gas-company-paul-ca10-1962.

Opinion

Related

Cite This Page — Counsel Stack