MARY EDITH DAULTON, ADMINISTRATRIX OF THE ESTATE OF DONALD LEROY DAULTON, DECEASED, APPELLANT,

v.

SOUTHERN PACIFIC COMPANY, A CORPORATION, APPELLEE

PER CURIAM.

Appellee moves to dismiss the appeal, notice for which was filed on October 24, 1955, on the ground that the judgment was entered on August 4, 1955, and that the time for appeal expired on September 7, 1955. It contends that a motion for a new trial made on August 16, 1955, was made more than the ten days permitted by Fed.Rules Civ.Proc. Rule 59 (b), 28 U.S.C.A., and hence the district court had no jurisdiction to consider it, and its consideration on the merits did not advance the time to file the notice of appeal.

It appears that the parties agree that at the time of the hearing for a motion for a new trial, appellant moved for relief under Rule 60(b) alleging excusable neglect, and that the district court thereafter, on October 14, 1955, disposed of the motion for a new trial on its merits, thereby granting the motion for relief under Rule 60(b) and that the time for appeal being thereby advanced for thirty days to October 24, 1955, the notice of appeal was duly filed.

The motion to dismiss is denied.

POPE, Circuit Judge.

I concur in the foregoing and in doing so note that whether it was proper to grant relief under Rule 60(b) is immaterial here; — what is material is that the trial court did so.