Petition for Writ of Certiorari — Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc.

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SEP 17 196.

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" JOHN’ F. DAVIS, CLERK

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IN THE

Sipreme Court of the United States

OCTOBER T ERM. 1962.

No. 435 Se : a

HARRIS TRUCK LINES, INC: A Conroratios,

. Petitioner,

>

4 é Us,

CHERRY MEAT PACKERS, ING., A Corporation,

ee

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT. ~.

oh? +

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Hlarncan L. Hackrerr,

Evoesre H. Rvark,

~. 208 South LaSalle Street,

Chicago 4, Ulinoi-, |

Joseru KE. Bet.

105 South LaSalle Street,

. i gees 3, Illinois,

Attorneys tor Petitvoner.

Respondent,

ts wees 6 COMPAR, Cmrceee

PETITION FOR A WRIT OF CERTIORARI TO THE

INDEX. ‘ in :

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pees PAGE

Citations to opinions below...........0.......... aan

Jurisdiction ....:....... a Sew wannawules eu re a pe

Questions presented ...°..... Brag oe leh pee 35 ey

. Federal Rule MMOS Sci liceneae gules 4s :

nn a eee Grae neaet oe 3

eniien for granting, the writ: Pee re einen. 2

, Argument cera ey cae wen Sp ee ee oe ep ete re an "

Conclusion Stk ee ee irae heer ay

‘Appendix’ A eae SCORER Nae OG Le G17 ds ERMAN a pee eens 2. Sf

Appendix My fo aah ntevas Roaeale a ee pate ea ako re DS

- Appendix ae ae yo PEP er nt ers eee 31

Appendix D......... Sy se Sree eet ears wee

Appendix.E..;.7..7...-. reer RY Dawes SP RPFEES 37

é | : oe i i Crrations,

: Cases. .

* Baldwin v. . Traveling Men’ s Association, 243 U.S. 522

pf MED oa keene ee celts cock eepae von an eek 4 id ae

Blanchard v. C ommonwealth ( iil Company, 204 F. 2d

834, (Sth Cir: 1961)... 8.00.06. eee. peeve 13

Burnstein y. Columbia Broadcasting Svatem, Inc., 291

F, 20 6 (7G Ole. WEL). 5 ie ioe cece css elas ae

' Cohen vy. Plateau Natural Ga¥ Company, 302 F. 2d 272

(10th Cir. May 1, 1962)...:........... ety eS 10

Conway v. Grey hound L ines, gee 7” 243 F. Dd: 9 (DC.

_ Cir? 1957) . pcb fee eet sets pe pee e etn roETs yer,

——c rowel v. ‘Benson, 285 LS. S| 4 Pe Sa ae

Dyer v. McDougall, 109 F. Supp. 444 (EaD. N.Y. 1952 )

| Rstep v. United States, 327 U.S. 114 (1946) ie eae - ss

Fowler v. Dodson, 2 2 FR. D. 4.(. D. Pa. | eee

‘Gavin v- ‘Bedeen & Masikatten R. Co., 185 F. 2d 103

"(3d Cir. 19’ See gk at Nols Gita ward 6 a aaa ae

? Howard_v, Local 74- ete 20 Fr 2d 930° (7th Cir.

47.

ee 2, J fhe ERROR a v= skeen oe ee ea ee

Kéene Lumber C o. v. Leventhal, 165 5 Fed 815 (1st Cir.

1948). rere a Seer ee ape

Mitchell v. W hite Consolidated, hes? aire *, 2d 500, (7th

- Cir. See on es To Soe ea Fe ven 6s ,

Myers v. Bethlehem Shipbuilding C orp. 303 0.8. 41 “

(1938) ..... eeieay cso. Fook oe Oe re eg A

__ National Labor- Rélations Board v. Hearst 222-U.'S.

a eee oa eer

___Nichole-Morris Corp. v. Morris, 272 F. 3d 586 (2d Cir,

| a Ca eae SS parr piace, Pay ae «

North Umbe rand Mining Co. v. Standard Accident

Insurance 'o., 193 F. 2d 951 (9th Cir. 1992)...0....

Orange Theatre Corp. v. Rayhe ‘rstz Amusement C orp.,

139-F, 2d 871 (3d Cif. wee ae ra ae

Resnick v. Lehigh Valley, R. Co. 11 Fe R, D.76 (S. D.

S35 See ene ee A ee eran btae .

Rosenberger v. Hawker, 127 Iowa 521, 103 N- ss 781

os Seta eas -~-

Second Nat.- Bank of New Hav eu Vv. Harris, 122 Conn.

180, 157 Atl. 910 (1936) ..,.:- Alfe.c-0- 02 Ahad Ser

10°

11

.

é

.

»

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. ° ©

’ .

. | . Woes

——_Senthern RK. Co., v. Wilson, 213 °F. 2d 870 (4th Cir.”

a DTI EES PENS BS eer ind ee ere |

~—-

Strate desig i apn Automobile Insurance Company v.

~ Pajmer, 350 U.S. 944 (156) Pye ore tee yea ACE orp :

- Steftco Stainless ~— v. FTC, 187 FP. 2d 693. (7th Cir.

1951) ailt 6 248 Sei AE oe Me ConA Od Ih ra ae NE Oe ¢

: 4 Statute s. Fie, &.

- Judicial Code: (28 U. S. .) ee,

Section 125411) ....... 2.2.60. Sp peas pepe

. Section 12337 “rg git tka ae Me hee eae ns ate hae

‘ Section WON 53 ek Pes eek a ae SETS Meteo Bs

Se¢tion See eae ruber sora herald 8 RARE oe

’ Federal Rules of Civil Procedure, 28 U.S.C. following

Section 723¢:

Rule |) eee age LA ow hea tora’ See ee 17

E(t an Bstuneds. Per eens | te

———_ Bale 12th) 7 53-.- FES EL EE TEE Seace wil PE ET

Rule d2(a) eer ; te pecree. eee: AS ee

SO ER Oa Ay oe eas eos ia doe ee 133

Rule 13(a)\..... 2 36 FARE 10, 11, 12,15, 14, 16,17, 1% -

\ Wisiclindéows.

tana l mA! 3 ‘

Restatement, Age mey 2d (1M 1) ee &. es eRe rate 17

Rule 15/f), Rules of the United States C ag of ile “ales

for the Seventh © ireuit. SN epee cesta J" errr ree 1 ww

AN THE ie

‘oie Court of the. United States’

Octosper TERM, 1962.

4 ‘No. et Sante

HARRIS TRUCK LINES, INC., A Corroratios,

ee = Petitioner,

Use

\

\

‘CHERRY. MEAT PACKERS, INC., A’ Corporatios,

mah 8 ‘ Respondent.

: a ° ° se. .

.

' PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

—_—__—_—__-#

Harris Track Lines, Inc., prays that a Writ of certiorari

. issue fo ‘review a judgment of the U nited States Court of

Appeals for the Seventh Circuit entered in the above en-

. titled case on May 10, 1962, on which. judgment rigs aring

was denied on June 21, 1962:

CITATIONS TO OPINIONS BELOW.

— The only opingan involving the question on Which cer--

tiorari is sought is the opinion 6f the court of appeals

- printed in Appendix A hereto, infra, p. 21, which is re-

ported at 303 F. 2d 609.

to

" .- SURISDICTION.

’ The judgment of the conri of appeals was entered on

- May 10, 1962. (Appendix A, infra, p. 25.) . Rehearing was «

denied on June 21, 1962. (Appe ndix A, vufra, p. 26.) ¢ The.

pees of this Court ix invoked, under 9¢.U. 8: C. |

=

tl ee

QUESTIONS PRESENTED.

1. ‘Whether a notice of appeal is timely when filed less

than 60 days after entry of judgmefit atid when filed in re-

liance on an extension of time under Rule. 73(w), F. R. Civ:

P., granted by the district ‘court less than 30 days after

“the entry of judgment. ;

2, Whether the ‘inability ‘of counsel employed only ‘to

try the case to advise’ forwarding counsel of the entry of

judgment heeause of such forwarding cotinsel’s absence

from the country constitutes a sufficient showi ing of: ‘‘fail-

ure-of a party to learn of the entry df. the judgment’ to

”

pt 4

sustain an extension of the time for appeal granted ‘less _

than 30 days’ after the entry’ of judgment: eee |,

3. Whether a party learns of the-ontry ‘of judgment

within the meaning of Rule 73(a) when such-party actually:

learns thereof or whether the requirement is. satisfied. by

notice to’ ‘counsel of record not, in faet, conveyed to the

party. ; ° 7 | '

$. Whether the granting of an extension of time” for

filing x notice of appeal, under Rule 73(a), within 30 days

of the entry of judgment, is reviewable de novo in the .

%9

eretion, or under, the * clearly erronea@ais”’ rule,

2 W hether the ‘conelusion ‘of the court of ‘appeals. that

no showing of ‘‘excusabile neglect hased on a failure of a

party to learn of the entry of judgment’* had heen madeé; in

ae court of appeals, or is reviewable only for abuse of dis :

aoe

3°

.

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. the district court so as to justify a 14- day extension of time

for filing notice of appeal, ‘warranted dismissal of, the ap-?

peal for want of jurisdiction.

.

FEDERAL RULE INVOLVED.

Rule 73(a) of the Federal Rules of Civil Proce ‘odurg is tie

Rule involved, and ix set forth in ‘Appendix KE, infra, p.

“37. The relevant portion of Rule 7 ( sta) is:

“Rule 73 * *'* gs

(a) W hen and How Takeft, “When an ‘appeal:i is per: -

mitted: by law from a district court to a court of ap-

peals the time within which an appeal may be taken

shall he 30 days from-the entry of the judgment’ _

-pealed from anless a shorter time is provided by law,

** * except that upon a showing of excusable mene

_ based ona failure of a party to’learn of the entry of

judgment the district court in any action may. extend

the time for appeal. not exceeding : 30 days from the

expiration of the origimal time he ‘rein prescribed * * *""

Section 2167 of the Jucticial Code (28 U.S. 4. $2107) is

‘a parallel. provision, although it contains no pee pro-

visions as to the motions w hich terminate the running: of

’ the time for as .

‘STATEMENT. eet es

‘Petitidner Harris Teak Lines, Inc., an ‘interstate motor

" earrier then-having its principal place of businéss in Los

Angeles, California, filed:suit against ¢ ‘herry Meat’ Packers,

Ine., in the district court at ( hicago i in April, 157. It in-v

voked the jurisdiction of the court under 28°UZS. C. §° 1337

and claimed. that it had been underpaid on the casringe

of approgimately 40 separate shipments of saustige ih’ yio-

lation of. the Interstate Commeree Act. Cherry "Meat

Packers counterclaimed, alleging that one of the shipments

was spoiled in transit from Chicago to San Diego, Cali-

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fornia in violation of thie carvier’ % daty. The case came ;

to trial without 4 jury in February, 1960 and resulted in a

finding by the district judge in favor of Cherry Meat |

Packers on its counferelaim, The: findingxoof the dixfict

court, however, ngde no reference to any factual or legal

élement of the claim, being solely ‘the findings proposed

by Cherry Meat Pagkers which were devoted exclusively

to the counterclaim. (Ply App. 209-211.) A motion for a

ngw trial was timely filed and on Jqne 28, 1961, one year

© and four ‘months after the trial, the motion was finally

comes, (PLeApp. 214.)

- During the period following the original filing of this

action, Harris Truck Lines had ceased active operations

and was in the process of dissolution. In 1960 the corpora-

tion “had. assigned itx operating rights to another motor

carrier and conducted no business thereafter, The corpora-.

tion remained in existence at*the time of the denial of the

motion for a new.trial. However, its, officers had obtained

other full-time employment and the corporation fo longer

maintained a Wusiness office, and had. no employees® or -

telephone. (Appendix ©, infra, pp. 31, 32.) The officers of

Harris Truck Lines resided in various parts of Southern’

California, including the gencral counsel, Mr. Jack O. Gold-

smith. (Appendix 1D), infra, p. 34.) Mr. Goldsmith had

been given blanket a to act on behalf of the cor-.

poration in winding uy affairs, including the conduct

and disposition of all litigation. (Appendix C, infra, p. 31.)

Mr. Goldsmith, who ix also a practicing attorney in Los

Angeles, had retained counsel m Chicago for the trial of

the present lawsuit.

” Upon being notified by the district court that the motion

for a new trial had been denied, trial counsel sought to

inform Mr. Goldsmith in Los’ Angeles, requesting advice

on whether to appeal. However, counsel waxtold by a see-

®°

~5

retary that Mr. Goldsmith was touring in Myxico and

would #ot return until July 21, 1961.

, Nearly two weeks of the 30 days provided in Rule 73(a)

fog filing a noticed of appeal had then elapsed and no quali-

fied representative of the corporate party had been noti-

‘ fied of the denial of the motiqy fora new trial. “Counsel

thereypon prepared a motion to extend the time for filing

the notice of appeal, served counsel for Cherry Meat

Packers and appeared ‘for hearing before the emergency

judge on July 13, 1961, fifteen days before the time for

filing a notice. of appeal would have expired without any

extension. Counsel informed the district court’ that the

matter before ft was the only one he had ever handled for

Harris Truck Lines, that Mr. Goldsmith was touring in

~ Mexico, and that he would need time in addition to the

original thifty days.to be instructed whether.to appeal.

. The district judge extended the time for two Weeks until

Angust 11, 161. (Appendix B, ivfra, p. 30.) Thereafter

Mr. -Goldsmith returned’ to this ‘country, learned of - thes

entry of judgment and engaged new counsel fo determine |

whether an appeal sbould be taken. The, new counsel

examined the district court docket, noted the extension of

time granted and, in reliance thereon, filed the notices of

appeal within, thy: “extension of time granted.

Harris Truck Linus pwr fected the appeal, received three —

* extensions of time for filing its brief and’. appemlix pur- .

suant to stipulations by Cherry Meat Packers and completed

filing on December 20, 1961. Cherry Meat Packers’ brief

was dae on Januaty 19, 1962 Mut two days before that date

Cherry Meat Packers, for. the first fime, moved to dismiss

the appeal on the ground that the extension of two warks

for filing the notice of appeal granted six months previous

should not have been granted and therefore, the notice

of appéal was filed out of time. Briefs were filed by both

_ parties and Harris Truck Lines filed affidavits of -Mr.

, ¢

© «¢ 6 ,

Goldsmith and of Mr. Harold Mendénhall, Viee President of

. the corporation, in support.of its opposition tothe motion

to dismiss. Two weeks later; the court of appeals entered

the following ordér:

*.ee :

“Tr is HEREBY onvERED that the said motion to dismiss

appeal be, and the same is héreby denied. + ‘

“Ir is veRTHER ORDERED that the request of plaintiff.

appellant that the defendaut-appellee he ordéred to file

its brief on the merits be granted, and- defendant-

appellee is hereby ordered to file its brief on the merits

within thirty (80) days@rom this date."’ (Appendix. A,

“afra, p. 27.) = , .

Counsel for petitioner next learned that the issue of the

timeliness of the filing of the motice of appeal remained

in the case when he was so advised by the court when he

aroxe to present oral argument. The ‘lecision of the ‘court

of appeals on May 10, 1962, in which the opinion was

written by the same judge who entered‘the order of Jan-

uary 31, was concerned solely with the question of time-

liness of the filing of the notice of appeal. (Appendix A,

infra, pp. 21-24.) A petition for rehearing was- denied

without opinion.

All of the factual matter videtiag to thé propriety of the

extension has been placed in appendices to this petition.

(Appendix B—Transcript of Proceedings had at hearing of

‘July 13, 1961; Appendix (—Affidavit of Harold Menden-

hall; Appendix D—Affidavit of Jack Oliver Goldsmith.)

So far as petitioner is aware, there is no issue as to the

facts there stated or set forth.

~

REASONS FOR GRANTING THE WRIT.

1. This decision of the court of. appeals raises an im-

_ portant, but undecided, issue in the day-to-day application

of the Federal Rules of Civil Procedure. The effect of the

decision is to place limit« on the authority and discretion

of the trial judge t®rant an extension of time for filing

a notice of appeal not contemplated. by Rule 73(a) and

contrary do the spirit and principle of other cases decided

under the rule.

2.' To the extent that the present ease and Mocard ¥.

Local 74, ete., 208 F.2d 930 (1953) can be said to represent.

the Seventh Cireuit view as to the scope of review of Rule. ~

73(a) orders concerning extension of time for filing notice

of appeal, thix view conflicts with the deference. accorded

the trial. judge’s decision by other cirenits considering the

question.

3. The decision of the court of appeals | raises questions

as to the scope of federal appellate. review which eall for

the exercise of this Court's supervisory powers’over judi-

vial’ administration :

(a) the court of appeals review od a procedaral action

of the district court as a question to be decided

by the court. of appeals: without giving. weight to

the previous determination of the district judge,

(h) by considering de nove the question of whether.

> counsel had made the necessary factual showing

-” for an extension under Rule 73(a), the court of

appeals treated the issue as a ‘jurisdictional

fact’’ for itx own degision, although there is no

justification for importing sach a rule (if it still

exists) from the field of administrative law,

(e) the court of appeals’ treatment of the factual

showing asx jurisdictional resulted in the final

ae : .. eras,

dismissal: of the action without an opportunity

for a decision on the merits of the case, contrary

to the spirit of the Federal Rules‘ of Civil Pro-

cedure, Pos

(d) the court of ‘appeals failed to follow its own rule

or to give any weight to (or even to indicate that

it considered) ‘its own prior ruling on the same

the facts adduced in fhe course of such

an incorrect and implausible decision on those

facts. ; ae

| | ra

Se

ARGUMENT. é

1. Petitioner Kelieves’ that it has been the wnhappy

participant in a case without parallel under the Federal

Rules of Civil Procedure: By prevailing in what appeared

_ , ‘to. be a somehat routine procedural nmiction, petitioner

now finds that its appeal has heen dismissed without any, -

consideration of the merits of its ease. Had petitioner's

motion been denied, a timely noti¢e of appeal could still

have been filed and the case ultimately resolved. on its

merits. , :

How did the strange result of losing by winning come

_. ‘about? Through appellate review of a district court ruling -

under Rule 73(a), F.R. Civ. P. at marked variance with

the deference usually accorded rulings of a distriet judge

on procedural matters, and, more particularly,.on Rule

73(a) ‘orders concerning extension of time for filing a *

notice of appeal. ar

The court of appeals reviewed de nove the question. of :

whether a sufficient factual. showing had been made to the

district court to justify an extension of time under Rule |

73(a). A negative conclusion on the showing question, it

then reasoned, deprived it of jurisdiction and required

dismissal of the appeal. . OS :

The issue is the éxtent to which Rule-73(a) may properly

be treated ax jurisdictional, a question which, in the nature —

_of federal appellate practice, merits resolution: by this

Court. . :

There is no doubt but ‘that there are two underlking——

jurisdictional principles embodied in Rule 73(a): 6

(1) no extension to file the notice of appéal may be

granted or may extend. the date of filing more

—*

i,

10

Bez than 60 day. after the action of the district court

‘becomes final, the district court being absolutely ”

without en oft p Oday -

period,

(2) 30 days after the actioy of. the district court be-

_« comes final, the distriet court ‘‘conditionally’

loses jurisdiction, subject only to its right to ex

tend the Period for filing the notice of appeal up

to the 60-day limit where the necessary showing of

‘excusable newleet has been made.

All of the cases supporting the court of appeals opinion

are, applications of these two ‘* jurisdictional” principles.

In each ease (and in every ether reported case coneerning

Rule 73(a)), an extension was not sought until after the

original 30 days for appeal of right had run and appellant

was absolutely barred from appeal without the grant of

an extension by the district court. That ix not the present . -

ease. Rather, the question here ix. the extent of the trial

—_

court's diseretion to grant an extension of time during the

original 30-day. period when a party still has’ an absolute

right to file a notice of appeal and the district court retains

its power over the case and the parties. ;

‘The distinetions between applications filed in the twa

periods are manifest. Within the original 20-day. period,

an extension can be granted withoft notice orsaotion, but

cannot be granted er parte inthe second 30-day period.

North Umbterland Mining Co, v. Standard Accident Insur-

ance Co., 193 F. 2d 951 «oth Cir, 1952) ¢ Cohen-y. Plateau

Natural Gas Company, 303 F. 2d 272 (pth Cir. May 1,

1962). Within the first 30-day period, counsel fora would-

be appellant has the alternative, course to which there is

an absolute right (withont regard’ to his authorization),

of simply filing the potice of appeaigman even less diffieult

‘_—_——=

. under only One construction “of Rule

—T

act ‘then appearing ‘before the district judge Te eX-

istence of the alternative neh and the ‘abil ty of coun

‘sel torappear without notice to his opponent make sense

T3ia). Namely? that

the district court has a broader diseretionoin granting such

motions for extension daring the period initially preseribed

for filmng the nofije oF appeal than it does atter the CN PINE.

tion of the 30-day period for filing a notice of appeal. Thi-

sume distinction is mante liv Rute Goby. BOR Civ TE

Dod

No other case can be found in whieh a court of appeals +

has been willing to consider aw contention that a’ filing with.

in the 60-day period predicated upon an extension granted

within the first 30-day period is not timely. 1 is the ‘firm

conviction of petitioner that the reason that there-ape ne

Case sealing with the specific pootnt thie district court’ s

power. within the first 30 day~ afterentry of judgment te

extend the time for appeal up te a full 60 days upren stiwh

showing under Rule 7304) as the court dhems necessary

ix that until now if tad been unitormly conceded to bye

within the district court's dise retionary jurisdiction.”

a AS Judge Hotfuiai eomine nteal atthe hearmy whieh resulted

the grant of extension of time * ALL connsel bas te de iw ge

aflown te the second feor aud filecs metiee’ of appeal Le cloesn't

e require a great amount oof effort Nppendis Boon fra. py 2

See, Conwan \ Cirewhound Lines, dno, 248 FO 2h 8 SOD Oe

Cir 157”, ’

2 Rule 60b) frrovides. in part. "8 © * the eourt for cau.

shown may at any time in its discretion I with or without motion

or notices order the period enlarged if reqiest therefor ps riade

before the expiration. of the prerrion| originally. preseribed ar as

-extendéed by a previews order or 2 dipen motion made after the

expiration of the spe ition! period permit the act tebe done where

the failure te act was the resiilt of excusable neglect * © °°" Riile

Gibbs isset out at Appendix E. mfra, pe 4s

, The only like factual situation’ is Second Nat Bant of Neu

Haven. Harris, V22 Conn Ws 1st Atl 910 1956 whete a state

rules for an appeal. the defendants” attornes mage df motion that = -

court found the faets te be that. ‘within the nin by the -

the time for appeal be extended on the ground tMat thes (defen!

e

‘ »

+ "Fhe court ,of wie relied primarily upon its earlier

. decision.in Howard vy. Local 74, ete. woh 22d 930 (7th Cir,

1953), in which it ‘reversed the wt ‘aunling of am extension

under Rule 7(a). The ease is mar ‘keel principally by. its

dissimilarities lorthe case at bar. For example, in Howard:

dy a notice of appeal hed been filed 3 2 days after

the district court’s judgment heaaniie final and

/ was concededly untimely, © ° ®

(2) 5s days after the judgment had become final,

! the district court granted a motion to withdraw

the original notice and granted an extension” of

time to*file a ney notice of appeal up to the, 6U-

day limit,

3) the case was a class action in “ahich the couten-

tion of appellants was that non- “representative

persons within the class he ul net learned of the

entry of jugigment, Z 2

(4) the. argument. of lack of jurisdiction Was made

"to the. tri judge, Whe -responded,:**1 “will det

the *hizher ‘ourt decide that one too’ (208 F.

2d-at 93; ;

i

What, to. petifioner, is even (more unfortunate is that

‘Howard implicitly recognizes the distinetfons which are

here urged. For example, the court there noted that ‘the

trial court's decision was: not based on a factual deter-

mination’? and **we have no’ question as. te whether the

lower court’ s findings support the order but are dealing

ants} were in Florida atid it would take time to communicate with.

them concerning aii appeal and that a copy of the reeord might .

be necessary." The Supreme Court of Errors denied a- motion

to listniss, saving. “the reasons for seeking the eXtension were

such ‘as wonld amply justify the action of the trial. judge in

granting further time, and the plaimtiff does not assert that they.

were not in fact true’ .

**

° . . . * + ‘ os 4 : ‘

_-~ With an order issted expressly to let “the higher court,

decide the “complicated ’ question.” * (208 F. Ql at. 932,

933.)

2. This Court has taken jurisdiction 4n. the past Vo

affirm the basic coneept of liberal construction and ape

plication of the Federal Rules of Civil Procedure, including

questions analogous to Rule T5(a). State Farm cae

Automobile Insurance Company x. Valuer, 250 US. O44

(1956.) (Relationship of rule Seb) tee Rake oe

. The technical construction of. the Federal Rules in’ the

————present case has deprived petitioner of aan opportunity

fora decision 6n the me rits of its Contentions, in coptraven-

tion of the principle of liberal construction upon which

the Rules were grounded and, the frequent injunetion of

‘the courts that litigation is to be disposed-of on the mer-

its, rather than by collateral attack. Mitghell v. White

Consolidated, Inc., Wi FL 2d S00, S02 (7th Cir, 1949);

Burnstein vy. Columbia Broadcasting System, Ine, 291 ¥,

2d 8° (7th Cir. 61). We sat ctamen’’ to Judge Raves? re.

cent words that the’ Rederal” Rules afte not intended to

cre: ite. procedural . traps for the parties." Blanchard vy.

Commonwegith OU ompaniy, 294 F. 2d SE4, S87 Cath Cir,

1961). ~

AY ae

3. Moreover, a grant or ‘deniil of leave to file a notice

of appeal within any: part of the 60-day period eoiiirert

“to authorization of the district court under Rule w(t) is

"reviewable at most for ave of diseretion. Nichole Morvis’

Corp. v. Morris, 272 F. 2d S86) (2 Cir. 1959): Southern

- RB: Coe., %. ¥. Witson, 273 F. 2d S70 (4th Cir, 1954). |

The court of appeals, however, apparently chose to

treat the questions of whether ‘excusable neglect’? or

‘failure of a party te learn Of the judgment’’ existed jas

2 ‘

‘

SE

‘jurisdictional’ faets,"* subject. to is de noys rédeter-

Crowell vy. Benson rule (Crowell vy. Benson, 285 U.S. 22

pare. A : 14°

mination At any stage of the appeal." Soh, Fg es. ¥

“There is iio precedent for borrowing such -a doctrine

from cases which have grown up around thetreview of

decisions of. administrative agencies. , In any event the

41932)) has been So limited by subsequent cases sich ag

Myers NV. Bethlehem Shipbuilding Cerp., 805 0. S. 41

(1938) ; National Labor: Relations Bourd \:; meats, pa

U.S. 111 (1944) and Estep v. United States, 327.8 _ 104

(1946) (concurring opinion, of Mr. Justice Frankfurter: rat

. 142) that this Court “should not Sanction an exte nsion of

ris doctrine into a new field.

Put in the light most unfavorable to petitiones ry the

ruling Ofhe trial judge should only have been gonsidered a

under thi? standard provided by Rule 52(a), POR UCiv. PL, ©

to determine whether the grant of ¢xtension of time Was

*elearl: CEPOHEOS 9° No Heh determinate MH trttede-— =

Where, as i the present’ case, the factual showipg of |

“excusable neglect’ did neat have to be made as a prered:

uisite to any. jurisdiction of the distriet judge to enter

an order, the necessary quantum of **showing’* is a factual

Bie peculiarly for the trial judge. No other ‘case has sug-

gested that a different and broader scope of review applies

to Rule 73(a) orders than fo other procedural motions...

4. Although there is no hint of it, in the court of

appeals’ opinion, the self-same question was decided in

favor of petitioner, by Judge Castle, awthor of the later

opinion, on January 31, 1962., At that time, the. court

of appeais was fully advised as to the factual background

which was presented by the: two affidavits of Goldsmith

_ —_— + --— — —

4 Judge Castle’ s opinion found that " the District Court was”

without jurisdiction to enter the extension itdid”’ (emphasis added

(Appendix A, infra, p. 24), 4 conclusion which otherwise has nos

meaning as to action taken by the district court within the original

30-day appeal period. »

s

a o

ee er es

and Mendenhall. (Appendix ( and Appendix: 1), mfre, pp.

» 31-36.) No counter-aftiday its were filed. Briefs were filed

by both parties, There is no doubt that an order entered ,

under sich circumstances is res judic ata of the issue, Bald.

win v. Traveling Me A *s Assov lation, Gal. 8. Be re

"The affidavits filed With petitioner's opposition lo re

- spondent’ ~ motion to dismiss make @lear that which wa-

oby iously understood by the trial court—that Jack UY, Gold

sinith, referred 4o-as ‘‘ceo-connsel (Appe ndix DB. avfra,

sep. 29). Was an officer of the corporate party, the officer <

-outsiMe of the countrys an gould note be reached. [ti

hard ye Imagine a setof Yacts< whith anore Clearly justifies

the cranting, of dn ext? “nston for time for taking an ap,

peal’ ~ Petitioner reiterate. \that it knows of no conten

tion that these facts do not extst.

who had the authority to i Me cont an appeal, and he was,

» Rule 15(f) of the Rules of the U niied States Court

(ft) Jvrishierion AL, QV ESTIONS Whinever it ap

pears that there is a substantial jurisdictional ques.

tion in a canse pending an appeal, such question may

be raised by either party by motion, to determine thie’

issu? as to Jurisdiction in advance of hearing on the

merits. Sych motion shall be made as soon Ys.possible,

é and whew such motion is filed, all further proceedings

shall be held in abeyance without further order until

onr disposition thereof has heer made. .

The court of appeals acknowledges that this. rule Was vio-

eb. lated by respondent. It attempts to explain away the rule

, fy

“by saying that a violation “‘cannot have the etfeer of con-

ferring jurisdiction upon this Court." (Appendix A, infra,

> * . . .

‘py. 24.) No doubt this is correct, but. such rile is neces

} / ; :

sarily limited to jurisdictional aspects whieh: are not sub-

ject to waiver (generally speaking, jurisdiction over the

*

- ~-

Ve

| eee tae Pes

of Appeats tar the seventir Circ’ state Mac aae i |

subject matter). Rule: 12(h), F. R. Civ. P.; Orange Theatre

Corp. y. Raylerstz Amusement Corp., 139 F. 2d 871, 874.

(3d Cir: 1944), certiorari denied, 322 UL 3S. 740 (1944306 bs

- (defense of lack of juriediction over the person must be

asserted ‘‘ promptly '’); Garin v. Hudson i Manhettan R.

Co., 185 F. 2d 104 (3d Cir. 1950) (lack of jurisdiction over

the subject matter -caunot be Waived). To apply the state-

ment indiscriminately to all types of* jurisdictional issues

turns the rule into tio more than a pious: hope, since the . . ~

‘court would then be required. to give full consideration

to ‘any jurjndictional issue, no matter when raised. Had

petitioner filed its notice of. appes al outside the 30- day limit °

without an order of court, the matter might have ‘been

jurisdictional in the sense referred to by the court of

appeals. A filing which, on its face, satisfies the .jairisdie-

tional requisites is not such a matter of absolute jurisdic-

cna and appellee never —— Ao explain. its .6-month

silence. :

.

6. ‘The court of appe ils res whod two conclusions which

petitioner believes are. themselves clearly erroneous. The

. first is its conclusion that Goldsmith could not be deemed

to be a’ party, so that the question, of. whether hie learned © .

‘of the judgment was not pertinent to the question’ of

*exeusable neglect." (Appendix A, infra, p. 25.) Where

a corporate party is involved, ne ean only ‘‘learn’’ of a

* Judgment or of anything Se throtigh ifs human represen-

: tatives, Steelco Stainless Steely, FTC, 187 F. 2d 69% (7th .

/ Cir, 1951). Goldsmith was an officer of the corporation. °

and, more particularly, the officer in whom had been vested —_

all authority with respeet to; pending litigation: (Aspen. 6.

dix (, infra, p. 31.) Sinee Role T3in) is intended to — .

place know ledge of the entry of. judgment in the hands of

the persons who can authorize aj appeal, no person eould

os more clearly have heen the **party’’ than Goldsmith.

_ Apart from the particular facts of this ‘case (in which

ana FY

to a ‘party’. for piirpose of Rule Tha). Daer vy. Mee,

Pownall, 109 F.Supp. 444 CB. DN. YD) 2 Resnick ve

Lehtgh Valley BR. Ca WFR. 76008. DN.Y. 1957):

Fowler v. Dodson, 22 FOR. D.4 (B.D. Pal ios),

_ \

SS. Dean ay aie |

: 2 5 ro)

prinetpal counsel Was also an officer of the corporate party)

the opinion overlooks a nymber of other cases ay which

courts have considéred counsel not of record as equivalent

a °

sent to at-

Thefeourt of appeals alse equated “ notice’

~forneys under Rule dob), BR. Civ. PL with learning of the

entry of judgnient required by -Rule. T3(a). There is,- of

course, a vital difference between notice and learning (Cor,

_ knowledyve) sinee notice maybe imputed where there ts a0

aetual knowledy)’ Sinve.actual kifowledge is a eondition

preeedent co filing a notice ‘of appgal, Rule 78ta) is east,

in terms of learning of the entry of judgment, rather than

Q Mhore limited receiving notices’? of the optry of judg.

ment. Thus, notice not coupled with ‘actual knowledge

aloes not make Rite Thi) unavailable to a party seeking

an extension of time tor filing notion of appeal.

rh 4 , |

The court's views that notice to the attorney is suflicient

“to show that the party learned sthereof is ineorreet, as a

matter of principle, where the attorney lacks authorization

to proceed with an appeal Ao supposed imputation of /

knowledge from agent to principal should not apply where

the attorney is unable to impart this: knowledge, to his |

client, particularly where the inability is known, This’

reasoning is approved by the Restatement, Ageney 2d

(1950), £268, comment a. The Howard casé also distin

‘ & A quotable statement of this rule is.‘ Tk] nowledge’ awa

‘notice are not svnontmous, for that which: does-not amount toe

actual fotice may constitute noties Cand ae party may be charged

wit notice while in utter ignorance of that of which he ts presumed

tote advised " Roscndsracr Vv. Hawker, 127 Towa 5210 108 NW

THT 1905 ox

6 The comment States. in part. *! if the“agent fails te transmit

the information’ because, of forgetfulness or because: the means ”

.

4, » ©

F *

. : ‘

© . . . .

“

| a ed ° /

guixhes between ‘notice’? and “actual notice,” (208 FP,

2d at 934.) ' wee :

7. Because the matter was erroneously vedted ax being

jurisdictional, it follows that the remedy of di<mixeal

adopted by the court of appeals ix also erroncons. Uf the

court of appeals was dissatisfied with the showing which

‘was nude before the district judge, it should have remandes

the cause to the district court fora further hearing at which

an additional showing could te made by petitioner.- There .

ix disgretion in the courtat appeals tomake such a remand

umder 28 USSU E1653. Keene Lumber Co, +. Lareuthal,

165 F.2d S15, S19 ww. 2 (1st Cir. 1948),

Therefore, petitioner believes that there have been raised

issues in the interpretation of the Federal Rules of Civil

Procedure whieh merit the oxercixe of thix Couct's jurixdie-

tiog: a. a : ; o. ;

s*

+ de irrnuse the motion <a psoas of time for filing

the notice of appeal was filed and acted upon at a time

when the distzgict court retaihed jurisdiction over the aec-

tion and when petitioner éoukd have filed a nolice of appeal

, of right, the granting of an extension of time so long ax it

purports to be made under Rule 7: (a) and does not tran-

seond the 60-day appeal perigd, is a matter within the broad

diseretion of the trial judge.

- 2. Thus, the courtpf appeais erred in:

(a) eqnating the caxe with thoge in which there’ War.

. either no cojorable jurisdiction or in which the ex-

tension of time was not granted axa substitute for

an absolute right to appeal,

(b) treating the question of whowing of * sable

neghoet ** an a juri«dictional fact ‘to he re 1 by

Oe ge by bien are wot pe very ‘either with or aes ‘his own

fault, the principal is not responsible in an action in which a

conseiousness of the fact not revs nee i is 4 necessary, clement.”

ae

(ec)

19 @* —+@

> oun

it rather than adopting the general rule of **almse

of diseretion”

at mniernt, the clearly erroncots’ “test, +

applied in procedural motions or,

treating the matter a- juriudictional nO tis to re.

quire, dismiss of the Complaint rather than #6

manding the cause for the taking of proofs as to

the existence of the statutory requisites.

recevaluating the facts, the court of “appeals

reached a come ‘usion which was itself cle arly erroneous,

CONCLUSION.

> , .

For the foregoing reasons the writ of certiorari should

he granted,

Respectfully subaitted,

Hantas LL. Hackwenr, .

* Evoese IL Reank, -

25 South Jasaté Street,

Chicago 4, “IMinois,

Jorern KE. Besa, -

105 South LaSalle Sitvicet,

(Hicago 5, Minois, |

_ Attorneys for Petitioner.

ot

APPENDIX A.

i ak Slits

Ix rue Usiren States Covi on Nertats

; ‘ For the Seventh Cirenit.

———

September Term, 161 —April Session, fee

° ee

* - = - 7

No, 13517 Appeal from the

‘Harri-~ Truk Lines, Ine., United States Dis-

ee ee Lo triet Conrt for the

wR. “i Northern District

Cherry Meat Pagkers,-Ine.. of Iinois, Kastern

In feadaut-Appeller, ) Division.

a m * ‘ °

| May 10, 1962.

Before Deevy, Kxocn and Caste. Circuit Sudaes.’

/

Castin, Cirenit Juda, This appeal invelves a snit-

brought in the District Court by Harris Truck Lines, Ine.

plaintiff-appellant, to recover freight charges alleged to

he dne it from Cherry Meat Packers, Ine. defendant-

appellee, Defendant's answer denied the indebtedifess and

asserted a counterclaim for damages allegedly sustained

by reason of the negligence of ‘the plaintiff in failing to

provide adequate refrigeration for frozen meat shipped

by defendant. Plaintiff’. anewer to the counterclaim denied

its failure to provide adequate refrigeration, ayerred lack

of negligehee on its part, and alleged DAt whatever

damage oceurred was attributable to the condition of- the

22 =

meat when delivered for shipment,'to the inherent nature .

of the shipment, and to the action of the defendant.

The cause wax tried without a jury. The District Court

dismissed plaintiff's complaint and entered judgment for |

defendant on its countérelaim. A motion by the plaintiff

for a new trial was denied Junv 28, 1961. On July 13,

1961, in the absence of the trial judge an emergency judge

‘sitting during the summer recess entered an order, on the

motion of -plaintiff’s attorney of record, that the «time

within which plaintiff might ff" a notice of appeal was

extended to August 11, 1961. Plaintiff*x notice of appeal

was filed on that date? : :

A crucial and threshold issue presented for our deter-

mination is whether plaintiff's notice of appeal was timely

filed so ax to give thix Court jurisdic tion. “And, resolution

of that ixsue depends upon whether the District Court had

jurisdiction, under the facts and cireumstances ‘dise losed.

by the record before it, to grant the extension it did. —

The time requirement within which an appeal must be

taken is mandatory and jurisdictional. Ray. ot ul. v.

Morris, et al,, 7 Cir., 170 F. 2d 48; Marten vy. Hess cet al,

6 Cir., 176 F. 2d 834, 835. In the — case the appli-

cable statute ‘and rule (28 U.S.C.A. ¢ 2107 and Rule 73(a) —

of the Federal Rules of Civil deere 28 TUS.C_A.)

fixed the time within which notice of appeal was required

to be filed as 30 days from the order denying plaintiff*s

motion for a new trial except that ‘‘upon a showing of

excusable neglect based on a failure of a party to learn of

thf entry of the judgment” the District Court’ix authorized

Barr the time for appeal not exceeding 30 days from

the expiration of the _riginal time preseribed.

In Howard vx. Local 74, Etec.. 7 Cir., 208 F. “2d 930, this

Court in eae an apyral had occasion: to observe

_(p. 932):

“Thus, it ix clear that a lower court wa jurisdiction

2

to extend the time for appeal only if a basis for that

jurisdiction is found within the express provisions of

ule 73a), ric. a showing of excusable neglect Intsed

on a failure’ of a party to learn of the entry. of the

judgment."*

With these principles in mind we turn to. consideration

of the facts and circumstances, as disclosed by the record

before the District Court; upon which the extension was

granted. There is no guestion that plaintiff's attorney of

record in the trial court action had notice of the ontry

of the judgment sought to be appealed from and of the

order denying a new trial. Plaintiff’. motion for extension

was grounded of the assertion that a Los Angeles, Cyli-

forMia, attorney, not an. attorney of record in the cause |

but described as **co-counsel,”” had gone on a vacation

before learning of the deniat of the motion for a new tril

and would not return to his office until July 21, 196). At

the hearing on the motion for an extension of time for

appeal plaintiff’. trial court counsel advised the court

that *thix ix the only mattéer- we have ever had from

Harris Track Lines. It wax sent ‘to us by Jack Oliver ,

Gold=mith, a Lox Angeles attorney. Judge-LaBuy found

against the plaintiff-coumter defendant, and we advised .

Mr. Goldsmith of that. Then we filed a’ motion for new

trial, and before the denial of Judge LaBuy on our motion

for new trial, Mr. Goldsmith went one«a vacation to

Mexico.’ . . :

Whatever the relation of Goldsmith to the plaintiff he

_ was neither a ‘‘party’’ to the cause nor an attorney of

record therein. He was not entitled to notice and con-~

ceding that he lacked knowledge of the denial of the

motion for a new trial it ix of no avail to. plaintiff. No

showing wax made that Haris Truck Lines, did not learn

of the entry of the judgment and of the order denying a

‘new trial. There was but an assertion of counsel that a

**eo-counsel’’ not of record in the cause had gone on 4

ve?

24 _

vacation before denia' of the motion for a new trial and

would not return until July 21, 1961. Neither the motion

for extension nor any of the assertions made at the hear- -

ing (no testimony or evidence was adduced in support of

_ ‘the motion) support a finding or conclusion that the plain-

tiff was unaware of the entry of the judgment or of the

order. And such a showing ix a mandatory prerequisite

to the District Court's jurisdiction or authority to grant

an extension of the time for appeal,

Moreover, notice to plaintiff’ x attorney of record of

the judgment and of the denial of the motion for a new

trial constituted notice to the *plaiiff. Rule 5, Federal

: Rules of Civil Procedure (28 U.S.C. ‘A.); Moward y. Local

74, Ete. supra, Noghowing was made before the District

Court that would justify an exception lo the general prin-

- ciple, recognized by Rule 5, that notjcerto ebunsel of record

i~ notice to the party he represents,

‘We conclude that the District Cohrt. was without juris-

diction’ to enter the extension it did and that therefore —

plaintiff’s notice of appeal was hot timely filed. Conse.

quently, this Court ix without jurisdiction ‘except to dis-

mise the appeal. e

Plaintiff assert, that defendant's belated challenge to

jurisdiction made subsequent to the filing of plaintiff's

brief ( which brief was filed pursuant to extensions of time

agreed to by the defendant) violates Rule 15(f) of this

Court which requires that a motion raising a jurisdictional

question in g cause pending on appeal ** shall ‘be made as

soon as possible’. But a violation of that rule cannot

‘have the effect of conferring jurisdiction upon this Court.

It does, however, in the instant ease- justify the imposition

-of costs against the defendant-appellee. Cf. Jarecki. v.

¢ Whetstone, 7 Cir. W2 F.2d 12t, 124-125.

Plaintiff's: appeal ix disemixsed but costs are assessed

against the defendant- -appellee.

ArreaL Dismissep.

- a

-Usitep States Court or Appreats

For the Seventh Circuit.

_ Chicago 10, Llinois..

: - Thursday, May. 10, 1962. : Spr 2

Before- ;

Hon. F. Ryan Duffs. Circuit Judge.

Hon. Win G. Knoch, Circuit Judge.

Hon. Latham Castle, Cireuit Judge. .

No. 13517. :

Harris Truck Lines, Ine., Uhited States Dix-

Plaintif’-Appellant, ‘trict Conuet tor the

v8, ; Northern District

Cherry Meat ‘Pucke TS; Inc. of [linois, Eastern

Defendant Appellee. } Division.

A ppeal from the

This cause came on.to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Illinois; Eastern Divi ision, and was | argued

by counsel.

On consideration wher cof, it is ette red and adjudged by

this court that plaintiff ‘s appeal from the judgment of the

saf@ District Court in thix’ cause be, and the same is here-

by Dismissed, and that- the costs be assxessed, against the

defendant-appellee, in accordance with the opinion of this

C ourt filed this day.

P \

. e °

26-

°

is Usitep States Cover or Apress -

. For the Seventh Cireuit. v¢ ee

“Chicago 10, Illinois. Et, oo

Thursday, June 21, 1962.

Before:

Hon. F. Ryan Dusty, Circuit Judge. * °

’ Hon. Win G. Knoch, Cirefiit Judge... - ‘

Hon. Latham Castle, Circuit Judge. |

No. 13517 a ya ppeal from the

- Harris Truck: Lines, Inc., United States Dis-

slenatt teal Appe Mant, | . trict Court for the

ee.° ° Northern Distriet -

Cherry Meat Packers, Ine. : of Hlinois, Kastern

Division.

- Defendant-Appellee.

IT 1s ORDERED by the Court that the petition of plaintiff-

appellant for a rehearing of this cause be, and the same is

hereby, DeNieD. .. ae

| Usirep States Cover or Apprans

. For the Seventh Cirenit.

Chicago 10, Hlinois.

Wednesday, January 31, 1962.

Before: ‘

Hon. Latham Castle, Cirenit Judge.

No, 13517 yA ppealtfrom the

| Harris Truck Fines, Ine, - 1° United Statex Dix

Plaintiff-Appe Mint, triet Court for the

rs. Northern District

Cherry Meat Packers, Ine. * of Hlinoisx, Bastern

” Defe ndant- Appr Mev | Disision.

On consideration of the motion of defendant-appellée to

aa the answer of plaintiff- Appellant to said

motion, And briefs: of the parties,

It Is HEREBY ORDE ney that the said motion to distniss

appeal he, and the same is hereby denied:

Ip ix FURTHER ORDERED that the request of plaintiff-appel

lant that the defendant appellee hye ordered to file its brief /

on the merits be. granted, awf defendaiit-appellee is hereby’

ordered to file its brief on the merits within thirty (30)

days from thix date,

BS

APPENDIX B.

Ix tHe Unitep Srates District Court * — >

Northern District vf Illinois — «

Eastern Division

* * (Caption—No. 57 (659) * °*

Transcript of Proceedings had at the hearing of the

above-entitled cause before the Hon: Julius J. Hoffman,

one of the judges of said court, sitting in his court room —

in the United States Court House at Chicago,, Illinois

on the 13th day of July, 1961 at the hour of 10:00 o’clock

aa * - mh

Picea: - , nee

Mr. Kelly.

* Mr. MeKay.

The Clerk: 57 C 659, Harris rs. C herry Meat Packers,

motion ts extend time to file notice of appeal, :

Mr. MvKay: Good morning Judge.” We represent the

plaintiff, Harris Truck Line, and this ix the ‘only .matter

we have ever dad from Harris Truck Lines. It was sent

to-us by Jack Oliver Goldsmith, a Los Angeles attorney.

Judge LeBuy found against the plaintiff-counter defend-

ant. and\ we adv ised Mr. Gioldsmith of *that) Then we filed

a motion, for new trial, and before the denial of Judge

. LaBuy ob our motion for new trial, Mr. Goldsmith went

‘on a vacation to Mexico,

The Court: If ‘Tl may interrupt. i- ‘Gore any " ahjection

to this, Mr. Kelly! .

Mr. Kelly: Reluctantly, for these reasops——

20

The Court: Then ] must hear vou, counsel. I thought

perhaps— ie ;

Mr. Kelly, Ordinariiy 1 wonldn ‘ty

~The Court: All counsel has to do is go down ta’ the

second floor and: file notice of appeal. Tt doesn't Seat

any great amount of effort. ‘

Mr. MeKayv: On this one.dif ‘the Wourt please, DT think

‘all sid€ would like to have a supersedeas bond filed. and

T think there is far more chanee if tert is thix extension.

The Court: How long do vos want?”

Mr. McKay: 30 day. . Aire Me

Mr. Kelly: If vour. Honor i- disposed 7 vive it to

him, the only thing [. wanted i? point out ‘to vou is that-

this Gause ix a 1957 case. Last Mareéh. after submission:

_ of briefs, reply briefs. and the like, Jydge LaBuy entered

judgment for neon our counter claim. The re Was a motion

for new trial ‘and because his Honor Was away, it Was,

entered anal continued, and Judge La Buy ton Jane 28th

aad ried his motion. e/ a .

He comes in how on 1 the idea that J ek € Oliver Goldsmith,

a-co-counsel from Los Angeles, w hose appa ratice is-not .

on file, savs that he went on a vacation and didn't know

anything ab@ut this thing. My position iS. under Rule

73(a) of the. Federal Rules of Civil Procedure, it says in

part its follows:

%e

. 2 pon a showime— **

: e

a7 The Court: FT owill estend the time two week~s the time

for the plaintif¥-counter defendant to file notice of afoprea!

Will be extended te afd ineluding Waly Qvth ;

+ Mr. Kelly: His time expires uit Au! vi2sth, sod presume

he Wants two wee ks a, ’ ,

The Court: You want twoweek~ bevend that |

” Mir. MeKay , Ser; le alse We have to get this” boned

back and forth. |

- :

Ya :

30

? wat

The Court: What bond was fixed’ | ‘

Mr. Kelly: No bond. ae as | oe

Mr. MeKay: No bonit. At would be about $15,000.

Mr. Kelly: ‘The judgment was tor $1 1.000,

The Court: ~ You want twir weeks be yond that’ 4

I am <vmpathe tie te Mr. Ke Ths “s-position

¢ -Mr.MeKay: Seam. - Epes

¢ The Court: These old cases This case is ain old ease.

It took four years to wet to trial. We have got to dispose

of business here. We don't like to have, oll Ciises—at |

_ least I don't. "

Since you are sku for two week. event: the Beth,

‘that will take you to August 1th.

Mr. McKay : Yes, sir. ? ay anor

The Court: All right. - us 5

a P 3

| é fe oe We

‘Ls Bae Usirev Srates Distrer Cover

. * (Caption—No, sit C65) *

by . i ——f * ,

eo Fs “+ CERTIFIC ATE. ;

. Lheréby certify tliat the above aud foregoing transeript,

pages 1 to 4, inelmsive. isea full. true and aeeurate tran

_seription of mv original shorthand notce taken on the

hearing of the above-entitled aus? hefory Judge Julins

J. Hoffman on duly 13, WGT at Decne o'clock aan.

~~

‘s Doreray Lo Brackenneny ~

Dorothy f,. ‘Brackenbury,

Officer!) taunt hte porter, Tpited

a ; to States District Canrt, Northern

Phestrict «at MMlinoix.’

-

°. Dated :‘ Mareh 22, 1962

_ APPENDIX ©.

>

Affidavit a Harold Mendenhall

*

hae

Srate or rt ALIFOENTA, : ha 3 ‘

=s + é

~~ Cotnpry of des A NGELES. ;

; o ra" : “zee “y

y NEF RFIDAVIT.

Haroip Mesxpesitaue., havany first been duly sworn under

bath deposes and states as follows:

At Ji times mentioned herein’ ty hag been the View

President of Harris Trick Lines,” Thie., and due to. the.

absence from the State of Califormize of -the President,

during most of 1961 he ha- deen’ in charge of the witairs.

of Harris Truck Lines. ‘Ine., during 1961; tha all during

the yer ar 1961 the general course of Narris Truck Lines,

Ine., Jack Oliver Golds mith, was ‘delegated untette red di

¢retion by said corporation to make ‘all polics » determina

tions on matters whieh-were lor might be’ litigateds and

in which Hapris Track Laine would of migh? be involved, "e

ineluding litigation then pending with Che ry Meat Pack

ers, Ine:: that’ sald Goldsmith: hyd been ide lenuted full

authority to sueor to order suits filed, to settle or com

promise elaine. to retaty trial course of bu choosing,

‘ty order app “ats oor at reel satis other belal ste a connected!

with ans such Vitisecatienrs fay cites aetion anvelying Harris

Track Line >, Ine.: that -and Giokdsmith Was fo act as agent 6

and attornes: iefact for Marr- ruck Line= in all matter~

involving ditigation aml all other matter: pertaining: to

said corporation durin all of D6)

During 1061, Harrr- Trock Line-. An condacted me

_ busine ss, fad, ho often, hat to emplover, had ne telephone,

Fee

-. and war engaged in no activity

. 4 sf ; whe , : °

’ , - ; \ »

, , . .

seept the winding npsof

its affairs preparatory to Te distylution; that vdtarPo’ all

of Juny, July and Auguet, of 1961 the President of ‘Harris.

Truck Lines, ine. was employed by ad interstate tracking —

company and & the perfonuaner of gir maid “nuployment

Was traveling alnosefiountuntiy throu t the United

States; that during the latter part of June and all of

“July of 1961-afiant wae absent from hix offie? for suab-

stantial periods, and affidnt hal fo secretary in hi>pfiew

during that time ——"— : ‘

muatign aimed belied atteren, that one Aettie 28, BG atid For at

least. three week= thereafter sail Cioldemifir wa. on a

touring vacation in Mexico: that the order extengling the

time for filing a Notier of My) obtained on July 1,

1961 by trial counsel in Chiedgd was made necessary by

the inability of suid trial counsel te contact said Gokd-.

stuith; that when ssid Goldsmith: retgrned te Las Angeles.

“affer hi- vacation he nptitied yous affiant of said extension

of time for filiig the Noties of Appeal grantell by the

District Court in Chicdge, aid that shortly thereafter said

Goldsmith notified your aMiant that ln hac-ordered a Notice

of Appeal to be filed within the time provided: in “that

extension; that due to Mr-tiokdnsmith ‘= abepuee on Vacation

during late June and early july of 1961 dlarrix« Track

Lines failed to learn through any other agent or employer

of the entry caf judgment_in the District Court adverse

to Harrix Track Lines, Ine. on June 28, 1961.

Further your affiant sayeth not. -

; Hanoto Mexoresuats.

, .

ll

- > °

. - ,

® . - - . : *

. - , .

- . a ° . ‘ , .

Your affiant i> informed amd believes, and on suc infor >

“

» Mlidavitiat the glace indicated,

Sraty. ov CU atsvonnsts,. oid

Cousty ov Lam Axutiae. { ne. .

Hamu Mexoexiass., known to ine, caine before me this

2th day of January, 1452, was duly sworn under oath,

stated that the matters set forth in the foregoing Affidavit

Were true and correct, and signed in my presener this

eo. qe

awn KE. sircurnear, pice ‘

nei Notary Public in and for

. County and State... ;

said

My Commission expires February lo, 1965

_*

APPENDIX. D. Ae

' Affidavit of Jack Oliver Goldsmith.

*

Srorve oF CALsvousta, a

Covsty oF Los Axckies, ;

AFFIDAVIT. oe

ef

Jack Ouiven Gots, having been first duly sworn

under oath deposes and states ar follows: +

He is an attorney licensed to practlee law only in the

State of California, and ix and for a long time has been

» general counsel of Harris Track Lines, Ine.; that in his

capacity as general counsel he was at all tints during

the year of 1961 Tully responsible and fully authorized to

- make all corporate décisions with re “pect to any pending

litigation, including litigation pending in Hlinvis involving

Cherry Meat Packers, Ine: thal he had been authorized

to order the institution of suit, settle or compromise Gaines,

appoint and distnis< trial counsel, order appeals, and

direct any gther policy steps connected With avy litiga-

tion wr claim involving Harris Truck Lines, Ine.; that all

such responsibility was his and solely his by virtue of

authorization from Harris Truck Lines, Ine.

Such delegation of authority to affiant was made, neces-

sary by reason of the fact that during all of 196 Harris

Truck Lines, Ine. conducted no business, owned no operat-

ing authority, maintained no office, had no employee, had

no salaried officer or salaried director, had no quorum of

directors resident in the same county and did not have

two Officers permanently westding in the same county; that

~Harrix Track Lines sold it« only operating authority to

,

*

“-* ,

oh? ‘ e 7

° °

John’ Seib and Cline’ Bailey, dob a Shippers Motor Ex-

press, and joined in an application with those purchasers

‘for the trausfer of said Certifieate of Public Convenience

and Necessity Ne. MO-735s1, whieh appheation was filed

with the Interstate Commerce omission if Washington,

D. Cl in February of 1960 in Docket’ No. MeC-PC-63011,

that said Commission approved eitd Sale and transfer by

its order of November 25, 1960, that Harris Track Lines.

Ine. has conducted 0 business of any nature since 1460;

that Harris Track Lines during all of 11 wate invelved

only in winding up itn affaires and wetting veffy to dix —

4

solve, collecting the’ purchase price for said opgrating 9

‘authority whieh was juried in imtallnent=, and collecting

certain other receiv ables, ated “discharging it* indebtedness,

and that afiaut a= the duly appoitited agent and Attorney-

in-fact for said track liné collected) all of said receivables

and supervised the discharge of all liabilities, that affiant

was curing all gf 161 the only person authorized to en

dorse or write checks for said corporation, and afiays bad

absolute control of all monies of Tarri- Track Disses then

Doevinege coms clyeqromit ine aa Dean any “bis tisatie ae Truster -—

Your affiant further -tate- that he was on vacation in

Mexico on the 28th day of June, 1061 and did tet return

to hix offiee in Low Angeles or to the United States, until

the 20h day of July, 161; that be then learned for the

first time that trial counsel in. Chicago had deen uttempt-

ing to contact affant and had leon” unsuccessful in doing |

«o because of his touring through Mexico: that upon order-

ing a review of the court file in the Cherry Meat Packers”

case affant learned that an extension of time for the filing .

of a Notiee of Appeal had been obtained from the Court

hy local trial\younsel on Jaly 15. 161; that relying upon

the extension of time so ordered afiant consulted boy tele.

plone and letter with additional Chicage counsel concern

ing the merit» of a proms iboler sapoporanl : thaaat tapwons becdrnge nelvisend

*

e,

36

by said Chicago counsel, said Chicago counsel was ordered

by your affiant to file a Notice of Appeal within the time

provided in the order of the District Court entered July

13, 1961. ie a

Your affant further déposes and states that no agent

or officer or employee or attorney of the party-plaintiff

with authority to order an appeal of the Cherry Meat

Packers litigation had learned of the entry of judgment

in the District Court’ at any time before your affiant was

informed of such action after his said return from Mexico;

that the 14-day extension granted by the District Coart

was essential in order to aprive at a proper decision as’

to whether or not an appeal was warranted; that. your

t firinly and sincerely believes thelgrrix’ position

on appeal is soundly supported by the law and the evi-

dence and that a gross mixearriage of justice would result

if the subject judgment, were not rev iewed and the appeal

concluded on its merits.

* ©

Further your affiant sayeth not.

Jack Oviver Goipsmita.

a9

.

State or CaLirorsta, :

Cousty or Los ANGELEs.

Jack Ouiver Goiosmitu, known to me,-came before me-

this 19th day of January, 1962, was duly sworn under oath, -

stated that the matters set forth in the foregoing Affidavit

were true and correct, and signed in my presence this

Affidavit at the place indicated.

,

Cice_y McBute,

Notary. Public in and for said

County and State.

*

a7

,

APPENDIX E.

Rule 73(a) of the Federal Rules ey Procedure, rod

amended Dee. 27, 1046, effective Mare bh 1, 14s, “* i. % 4%

following § 7230, provides:

a (a) Whenand Now Tahoe W ae Yh cite stpepaest late we

. mitted by law from a ‘district court toa court of ‘ap

peals the time within whieh an appeal may be faker

shall be 30 days from the entry of the judgment ap-

pealed from unless a shorter tine ix provided by law,

exeept that in any action in which thy United State»

or an officer or agency thereof is a party the time a-

to all parties shall be 60 days from such entry, and

except that npon a showing of exensable negleet based.

- ona failure of a patty to learn of the entry of the

, judginent the district court in any action may extend

the tithe for appeal not execeding 30 days from the

expiration of the original time herein prescribed. The

running of the time for appeal is terminated by a

timely motion matte pursuant to any of the rules here-

_inafter enumerated, amd the full time for appeal, fixesd .

in thix subdivision commences to run and is to be com.

puted from the entry of any of the following orders

made upon a timely motion under such roles: grant-

ing or denying a motion for judgment under Rule

SO(b); or granting or denying & motion undér Rule

S2(b) to amend or make additional findings of fact,

whether or not an alteration of the judement would

he required if the motion is gratited; or granting or

denying a motion under Rule 59 to alter or amend the

judgment; or denying a motion for a new tfial under

° Rule 59. ‘

Rule 5(b) of the Federal Rulex of Civil Procedure, 28

U. en following § 7236, provides : Y

.

.

(a) Same,” How Made. Whenever under> these

rules service is required or permitted to be made upon

3s ‘

a party represented by an attorney the service shall -

he made upon the attorney unless service upon the

party himself is ordered by the court, Servier upon

the attorney or upon a party shall be made by delivers

ing a copy to him or by mailing it to bim at his last ~

known address or, if no address is known, by leaving

it with the clerk of the court. Delivery of a copy . f.,

’ within this rule means: handing it to, the attoruey or

to the party; or leaving it at hix office with his clerk

or other person in charge. thereof; or, if there is no

one in charge, leaving it ina conspienous place therein;

or, if tie is ix closed or the person’ to be served

hax no office leaving if at his dwelling roe usual

place of abode with some person of suitahle age and

diseretion then residing therein, Servier by mail ix

complete upon mailing.

Section 6(b) of the Federal Rules of Civil Procedure, j

as amended Dee. 27, 1946, effective March 1 14s, Js

U.S. (. following § 724c¢, provides:

(bh) Enlaravment.” When by these rules or by a

notice given thereunder or by order pf court an act is

required or allowed to be done at or within a specified

* time, the court for cause shown may at ant’ time im

its disxeretion (1) with or without motion or notice

order the period enlarged if request therefor ix made

before the expiration of the period originally pre

seribed or as extended by a previous order or.(2) upon —

motion made after the expiration of the specified period

permit the act to be done where the failure to act was

the result of excusable neglect: but it may not extend

the time for taking any action under rules 25, 00h),

52(b), 59h), (dd) and (e), 600b), and 7T3(a) and (a).

except to the extent and under the conditions stated

in , -

Section 12(h) of the Federal Rulex of Civil Procedure, *

ax amended Dee, 27, 1946, effective March 19, 1948, 28

U.S. C. following § 723¢, provides:

(h) Wairer of Defenses. A party waives all de-

fenses and objections which he does not present either

a

.

by motion as hereinbefore prov ided or, if he has made

_ ne motion, in his answer or reply, except (1) that the

' , defense of failure to state a claim upon which relief

ean be granted, the defense of failure to join an indis-—

pensable paRy, and the objection of failure to state

a legal defense to a claim may also be made by a later

pleading, if one is pe mitted, or ‘by motion for. judy-.

ment on the pleadings or at the trial on the merits,

and except (2) that, whenever it appears by sugges

tion of the parties or otherwise that the-court licks

jurisdiction of the subject matter, the court shall dis

miss the action. The objec Hiern, or defense, if made at

the trial, shall be di<posed of as provided i in Rule 450)

in the light of any evidence that.may have been re

evived.

Rule “vd n) Pf the Feale ral Rules of Civil Procedure, as

amended Dee. 27, 146, « Mective Mare hd, 1948, 28 CS,

following §72he, provides: oe

ia) Effect. In all actions tried upon the fact? with.

out a jury or with an advisory jury, the court shall

find the facts specially and state separately its con.

clusions of law thereon and direct the entry of the

appropriate judgment; and in granting or refusing

interlocutory injunctions: the court shall simiiarly -«t

forth the findings of fact ‘and conclusions oPlaw whieh

constitute the grounds of its action, Reque sts for

findings are not necessary for purposes’ of review,

Finding< of fact sfiall not be set aside cutiless clearly

erroneous, and due regard shall be given to thy oppor-

tunity of the trial court to judge of the eredibility of

_ the witnesses. The findings of a master, to the extent

“that the court adopt~ them, <hall. be considered as

the findings of the court. If an opinion or memofan-

dum of decision ix filed, if will be sufficient’ if the firid-

ings of fact and conclusions of law appear therein.

Findings of fact and conclusions of law are unneces- |

sary on decisions of motionx under Rules 12 or 56 or

any other motion except as prov ided in Rule 41(b).

Bal

Section 1653 of the J udicial Code, 62 Stat. 944, 28 U. 8. Cc.

§ 1653, provides :, ,

- Defective allegations of jurindidtion may be amended,

upon terms, in the trial or appellate eptste.

Section 2107 of the Judicial Code, 62 Stat. 963 and 63

“Stat. 104, 28 U.S. C. § 2107, provides: .

Except as otherwise prov ided in this section, no

appeal shall bring any judgment, order or deerée in

‘an action, suit or proceeding of a civil-nature before —

a court of appeals for review unless notice of appeal

is filed, within thirty days after the entry of such judg-

thent, order or decree.

In any such action, Suit or proceeding in which the

United States or an officer or ageney théreof is a_

party, the time as to all” parties shall be sixty days

’ from. such entry.

dn any action, suit or proceeding in admiralty, the

notice of appeal shall be filed within ninety days after

the entry of the order, judgment or decree appealed

from, if it is a final decision, and within fifteen days

after its entry if it ix an interlocutory decree, —

The district court may extend the time for appeal

not exceeding thirty days ‘from the expiration of the

original time herein prescribed, upon a showing of

excusable neglect based en failure of a party to learn

of the entry of the judgment, order or decree.

This section shall not apply to bankruptcy matters or

other Proceedings under Title i.