# Petition for Writ of Certiorari — Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0271%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 215 ## Text & LIBRARY = fT oftice-sunrem PUR. UL we Rlik DD od a 4 ‘ SEP 17 196. re " JOHN’ F. DAVIS, CLERK s 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? + r 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 : , te —=___ ; $ ” / - oa + 4% 3 4 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 * . . . ‘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 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 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 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