LEJEUNE ET UX.
v.
MIDWESTERN INS. CO. OF OKLAHOMA CITY, OKL.
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The court held that placing a notice of appeal in the mail does not constitute filing; it must be received by the clerk within the prescribed time.
Plaintiff filed a notice of appeal more than thirty days after the summary judgment was entered. The notice was mailed within the thirty-day period bu…
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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.
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Cited By (14 total)
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Costas Hadjipateras v. Pacifica, 290 F.2d 697 (5th Cir. 1961)
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Ward v. Atl. Coast Line R.R. Co., 265 F.2d 75 (5th Cir. 1959)
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Lobato v. PAY Less Drug Stores, Inc., 261 F.2d 406 (10th Cir. 1958)
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Marten v. Hess, 176 F.2d 834 (6th Cir. 1949)
- Poynor v. Commissioner OF Internal Revenue (two cases), 81 F.2d 521 (5th Cir. 1936)
- Lamb v. Shasta OIL Co., 149 F.2d 729 (5th Cir. 1945)
- Alexander Film Co. v. Fed. Trade Comm'n, 193 F.2d 495 (10th Cir. 1951)
- Big Horn Coal Co. v. Sheridan-Wyoming Coal Co., Inc., 193 F.2d 495 (10th Cir. 1951)