Zimmern v. United States

79 F.2d 703, 17 A.F.T.R. (P-H) 61, 1935 U.S. App. LEXIS 4244, 17 A.F.T.R. (RIA) 61

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 14, 1935
• Docket: No. 7702
• Status: Published

Opinion

HUTCHESON, Circuit Judge.

These are separate appeals of Samuel Zimmern, Leila Zimmern, Samuel Joseph Zimmern, Jr., and Janice Zimmern brought up on one record from a judgment canceling as null and void as against the United States transfers Samuel Zimmern had made to his wife and children. The decree appealed from was rendered and entered March 3, 1934. On August 11, 1934, long after the expiration of three months from the date of the final decree, the appellant Samuel Zimmern filed a motion for rehearing. On August 13, 1934, the trial court having added a paragraph, denied the motion as to the original decree. The petitions for appeal and the assignments of error were filed November 10, 1934, and the appeals were allowed.

Appellee, insisting that this court is without jurisdiction of the appeal because taken too late, moves that it be dismissed. Appellants argue that the three months must be counted from the overruling of the motion for rehearing. It is perfectly clear that all of the appeals, except that of Samuel Zimmern, were filed too late, for only Samuel filed motion for rehearing. It is equally clear that his appeal was filed too late, for though he did file a motion for rehearing he filed it more than three months from the date of the final decree. A motion for rehearing so filed is not timely nor duly filed. It had no effect to extend the appeal time. Chicago, M. & St. P. Railroad v. Leverentz (C. C. A.) 19 F. (2d) 915; Northwestern Pub. Service Co. v. Pfeifer (C. C. A.) 36 F.(2d) 5; McIntosh v. United States (Gilliam v. United States), 70 F.(2d) 507 (C. C. A.); Stradford v. Wagner (C. C. A.) 64 F.(2d) 749.

We are without jurisdiction of the appeals. They are dismissed.