Petition for Writ of Certiorari — Warwick v. Segan

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SUPREME COURT, U. Ss a: “FTE: B5*

GAN 27 970

inti sea

IN THE SUPREME COURT OF THE

UNITED STATES -

(112 4

BETTY PITTMAN WARWICK,

Petitioner fer Certiorari,

vs,

BARRY S, S&GAN,

he Respondent in Certiorari,

PETITION FOR CERTIORARI

. “

WYMAN C, LOWE | *

701 Carnegie Building

“Atlanta, Georgia 30303

Attorney for Petitioner

| ed

INDEX |

Page

CONTENTS OF PETITION FOR CERTIORARI

(a) Reference to numbers of

(b)

the pages whereon appear

copies of the two Orders

sought to be reviewed, no

opinions having been deliv-

ered as to either. l-a

Statement of the grounds on

- which the jurisdiction

(c)

Ce)

(f£)

(h)

(i)

of this Court is invoked l-a

Questions presented for

review 2

Statement of the case | 3

Basis for federal juris- 23

diction in the court of

the first instance

Argument : 23

Reference to numbers of

the pages whereon appear

copies of the two Orders

sought to be reviewed, no

opinions having been °

delivered as to either 34

Supplement to "Statement of i

the Case", copies of documents -

next after page 22 - small

Roman numeral page numbers *”

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Seon Pe aera

IN TH SUPREME COURT OF THE

a ©: UNITED STATES

yee BaPPry PTLEMAN WARWICK,

Petitioner for Certiorsri,

VS, + | |

MARRY S, S#GAN,

Respondent in Certiorari, |

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-PwlT’TON FOR CERTIORART.

WYMAN Cy LOWS 3

701 Carnerie Building

Atlanta, Georzia 30303

Attorney for Petitioner

ee CEL CLE GAA

vauere

RI hie Ret Og PO ETS MOEA bri TNR ee faz

7 ‘ . : 4

i, TABLE OF CASES! CITED

“ Page.

American Insurance Co. v. bts ee

Scheufler, 129 F 2d nc 24

Bingham v. Morrisy 3L Ed 281 See

Cromelin v. Markwalter, U. s,

Court of Appeals, Fifth Circuit .

181 F. 2d 949. ‘ 30

Fiske Vv. Wallace, 115 F. @d 1003,

eertiorari denied 62 S. Ct. 123, 2

“cases, 314 U.S. 663, 86 L. “€d.531

rehearing denied 62 "Ss. Ct. 174,

two cases, 314 U.S. /10, 86 L,

Ed.566, rehearing denied 62 8, Ct. :

910, two cases, 315 U. Ss. 829, 86

L. Ed. 1224 26

Forman v. Davis, 371 U.S. 178

181, 83 S. Ct. 227, 230, 9L.

Ed. 2d 222, 225. '

HickLiny ¥. Bavards, aaa FP.

2d 921. 29

Tnternetfonal Broth. ee:

Teamsters ¢. etc., ot America

Ve Ue So 93. 272. F.2d Il. ik te

Kelly V. Penndpivanian R. Ce

228 F. 2d /2/, certtorari denjted

FO Sy Gt. 72. S52 U.3, 9254, 100

L. Ed. 1455. wee 29-

Leishman v. A-sociated Whole-.

sale Electric Co., 63 °, Ges»

$43, 318 U.S. 203, 87 L. Ed. 714,

rehearing denied 63 S. Ct. 758,

318 U. S. 800, 87. Ed. 1163. 30

iii

Pacific Coast Marine Firemen;

etc., Assoc. V. Coastwide Line,

171 F. 2d 284,

Phillips v.° Employers’ Mut.

Liability Ins. Co. of "Wee

239 F. 2d /9

Richardson v. Green, 130 U. S.

104, 32 L. Ed. 3/2

Salmon v. City of Stuart,Fla.

194 F. 2d 1004

Wilson v. Southern Ry. Co.

147 F. 2d 165

Yates v. Behrend, 280 F.,

2d 64, 108 U. S. App. D. C.

25, 2-A

IN THE SUPREME COURT OF THE UNITED STATES

BETTY PITTMAN WARWICK,

Petitioner for Certiorari

vs.

BARRY S. SEGAN

Respondent in Certiorari

PETITION FOR WRIT OF CERTIORARI FOR

REVIEW OF EACH OF TWO ORDERS, FINAL

IN NATURE, OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

COMES NOW BETTY PITTMAN WARWICK, by

and.through her attorney, Wyman C. Lowe ,

who is a.Member of the Bar of this Court

and respectfully petitions the Court for

writ of certiorari for review of each of

two Orddrs, final in nature, rendered

/ and entered in the appeal, "BETTY

\ PITTMAN WARWICK, Appellant--Plaintiff vs.

BARRY S. SEGAN, Appellee--Defendant" in

the United States Court of Appeals for

the Fifth Circuit. The main Order,

entered on October 1, 1969, denied the

motion of the Appellant for a 4-day ex-

tension of time from September 8, 1969,

for filing her Brief, as it were a mo-

tion for extension for said purpose "to

and including September 15, 1969,"

which was a Monday, and granted a motion

of the Appellee to dismiss the appeal

for failure of the Appellant to file her

Brief timely on September 8, 1969. The

other Order, entered on November 11, 1969,

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en BORE ease #5

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denied a motion of the Appellant for

reconsideration as to the Order that had

been entered on October 1, 1969, and for

reinstatement of the appeal.

Petitioner respectfully shows as

follows in her petition, which is pre-

pared in compliance with applicable re-

quirements in Rule 23 of this Court as

to the contents and the order of contents,

the applicable and required parts here-

inafter being numbered or lettered in

a manner corresponding to the numbering

or lettering of the parts in Rule 23,

and no reference being made hereinafter

to inapplicable requirements of Rule 23:

1 e ’

(a) There were no opinions

delivered in the case in the courts be-

low. A copy of the said Order that was

entered on October 1, 1969, and copy of

the said other Order that was entered

on November 11, 1969, appear on pages

xviii and the last page, respectively,

of the "Supplement to the Statement of -

the Case,'' which follows next after

the "Statement of the Case."

° (b) STATEMENT OF THE GROUNDS ON

WHICH THE JURISDICTION OF THE

COURT IS INVOKED

(i) The main and first Order

sought to be reviewed was entered on

October 1, 1969, date of its rendition

not being shown thereon. The other

Order sought to be reviewed was entered

on November 11, 1969, date of its rendi-

tion not being shown thereon.

(ii) No motion or petition for

Ager ai

. pas

- ; eathras ee a ‘ ¢ ‘ f VE OTT A See y

peed

l-b

a rehearing was filed. However, a mo-

“tion for reconsideration as to the Order

filed October 1, 1969, and reinstatement

of the dismissed appeal was filed. The

Order denying Motion was entered on

November 11, 1969,

(iii) The Statutory provision

believed to confer on this Court juris-

diction to review the said two Orders,

each of which being of a final nature is

embodied in Sec. 1254, 28 U. S. Cc, A. ;

the applicable provisions in that Code

section being: |

"Cases in the courts of appeals may

be reviewed by the Supreme Court by

the following methods:

(Lh) By writ of certiorari granted

upon the petition of any party to

any civil or criminal case, before or

after rendition of judgment or decree."

aint + Sat Ni EEO a RL

1. Was the Appellant, Betty ‘

Pittman Warwick, entitled under Rule

25 (a), F. R. A. P., to have her

brief deemed filed on September 12,

1969, considering the contents of the

#documents in the certified Transcript

of the Record and the circumstances

shown in her "Statement of the Case"

hereinatter? Sa

2 (a). Was there justification

for the three-Judge panel to state in

one-paragraph of the Order filed on

October 1, 1969 that appellant's mo-

tion for a further extension of time 2

"to and including September 15, 1969"

for filing her Brief was denied when

the only motion before the Court was

one by the appellant for a 4-day /

extension from September 8, 1969, .

"to and including September 12, 1969"

for filing her Brief? | °

(b). Did the Court give due

weight to its misunderstending as to

length of time extension requested in

Appellant's motion for time extension in

considering the motion for reconsidera-

tion and reinstatement?

3. Where the grounds set forth in

Appellant's motion, as amended by an

Amendment, for 4-day time extension from

September 8, 1969, for filing her Brief

sufficient to warrant the granting of

such extension?

4. Was what-was the equivalent of’

a 4-day late filing of only Appellant's

Briet sufficient to warrant dismissal

2-A

of the appeal, considering that the

United States Court of Appeals for the

Fifth Circu*t ruled in Phillips vs. Em-

ployers Mut. Liability Ins. Co., 239 F

2d 79 that late filing of record and

brief on appeal was at most a non- juris-

dictional defect in the prosecution of

the appeal and was not sufficient to

warrant dismissal?

5.€a) Considering particularly

paragraphs 8, 9, 10, of Appellant's mo-

tion for reconsideration as-to the two-

paragraph Order filed October 1, 1969,

and for reinstatement of the appeal, the

two exhibits attached to that motion and

made parts thereof, the entry in the

:Filings-Proceedings" in the Record as _°

to the filing of the Brief, and the let-

ter, dated January 23, 1970, of the Chief

. Deputy Clerk to the undersigned etyerney

original of which is third page in the

Transcript of the Record, does it appear

there wes non-compliance in the Clerk's

Office with Rule 25 (a), F. R. A. P.

through failure to keep some record

Or make some entry in the "Filings-Pro-

ceedings" that the Brief had been mailed,

Air Mail, on September 12, 1969, since

the Atlanta postmarks and the stampings

of "AIR MAIL" on the two boxes .

containing the 25 copies of the Brief

clearly showed that?

(b) Does it appear that such non-_ °

observance of Rule 25 (a), F. R. A. P.

in the Clerk's Office probably resulted

in the said three-Judge panel not being

aware Appellant was entitled to have her

brief filed on September 12, 1969?

6. Did the service on October 15,1969

en 3

1 LN = rp Datel Nea tell CN ac oh Gp

2-B

of copy of the motion for reconsidera- }

tion end reinstatement, filing of the

motion on- October 16, 1969, and enter-

tainment of thet motion by the Court

Operate to toll the running of statutory

time for Appellant's filing of this

petition for certiorari either from

October 16, 1969, to and including Nov-

ember 11, 1969, date the Order denying

the motion was filed, or toll the run-

ning from October 1, 1969, to and

including November 11, 1969?

7. Did said three-judge panel of the

Court of Appeals err in denying.the

Appellant's motion, as amended, for re--~

consideration ahd reinstatement, consid-

ering together the contents of that Mo -

tion and amendment thereto, including

exhibits attached as part of the motion

and amendment, and the statements in

letter of the Chief Deputy Clerk, dated

January 23, 1969, that is on the third

page in the Transcript of the Record?

8. Were the circumstences on which

the dismissal of the appeal was predica-

ted such as to justify avoidance of

consideration of the appeal on its

merits?

9. Considering thet motion to dis-

miss the appeal for failure of Appellant

to file her Brief timely on September 8,

1969, was not filed before September 12,

1969, date Appellant's Brief deemed

filed under Rule 25 (a), F. R. ee ae

and that Appellee’ filed his reply in

opposition to Appellant's motion for

reconsideration and reinstatement five

days later than allowed by Rule 27 (a),

F. R. A. P., for filing a response in

2-C

opposition to a motion, did the Court

err in dismissing the appeal and denying

the motion for reconsideration and re-

instatement?

9. Did the said three-Judge panel,

in denying Appellant's Brief for an

extension of time de ming tis for filing

her Brief, is dismissing “he appeal under

the circumstances, in denying the motion

for reconsideration and reinstatement,

and thereby avoiding consideration of the

appeal on its merits, so far depart from

the accepted and usual course of judicial

proceedings as to call for an exercise

of this Court's power of supervision?

SAY «Bs

ag E \

2 \, es v

‘In this petition for certioreri,

Betty Pittman Warwick, who was the

Plaintiff in the case in the United

States District Court, Middle District

of Florida, Tampa Diviston, and was the

appellant in an appeal tio the United

States Court of Appeals for the Fifth

Circuit from judgment of that District

Court for the Defendant, Barry S, Segan,

and against the Plaintiff, seeks re-

view of a two-paragraph Order of that

Court of Appeals, filed October 1, 1969,

and also another two-paragraph Order of

_ that Court of Appeals, filed November 11;

eee which are Document Number 13 and

in the Certified Transcript of the f

Redord,

In the first paragraph of the first

said Order, filed October 1, 1969, that

Court of Appeals denied @ motion of the

appellant, Mrs, Warwick, as if it were

a motion for an extension "for filing of

his brief, in the above cause, to and

including September 15, 1969", but the

only motion appellant ever filed for

time extension for filing her Brief was

one for a 4-day extension from September

8, 1969, a Monday, "to and including

September 12, 1969", The second para-

graph of that Order, filed October 1,

1969, granted the motion of the appellee,

in effect, to dismiss the appeal for

failure of the appellant for file her

brief by September 8, 1969, Motion of |

the appellant, filed October 16, 1969,

copy of which having been served on

Defendant's counsel on October 15, 1969,

for reconsideration as to the two-para-

olbe

graph Order, filed October 1, 1969, and

for reinstatement of the appeal was

denied in the last said Order, filed

November 11, 1969,

- The last said Order, in effect, af-

firmed the first Order, thereby caused

the first Order to’ become a final deter-

mination of the avpeal; and the last said

Order itself was, in effect, a final de-

termination as to the appeal; but each

of said two Orders was rendered before

there had been consideration of the ap-

peal on its merits,

For purpose of ease and convenience

of reference by the Justices of the

Court, there is included hereinafter,

next following the last page of this

"Statement of the Case", as "Supplement

to the Statement of the Case", a copy

of the "Filings-broceedings" of the

Court of Appeals in this appeal and most

of the other documents or papers to

which reference is made in this petition

for certiorari, including the Order

filed October 1, 1969, and the Order

filed November 11, 1969, as to which re-

view is sought, ‘he pages within each

document in the ''ranscript of the Record,

certified by the Clerk of the Court of

Appeals, and filed with this petition

with the Clerk of the Supreme Court, are

numbered consecutively, but there is not’

consecutive numbering of pages of the en-

tire Transcript of the Record, ‘The pages

within each document included in "The

Supplement to the Statement of the Case"

are riumbered consecutively, and the pages

of the entire "Supplement to the State-

ment of the Case" are also numbered con-

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secutively with small Roman numerals,

The document number that is at bottom of

first page of each document in the Trans-

cript of the Record is also at. bottom of

first page of the document in the "Supple-

ment to the Statement of the Case", which

"Supplement" being included An this petit-

ion next after. the last page of the "State-

ment of the Case", |

References hereinafter to any number-

ed document of which @ copy is in the

Transcript of the Record will usually be

. to the document number and the small

Roman number of the first page of the

copy of the document as it appears in

“Supplement to the Statement of the Case",

which will be referred to only as "Supple-

ment "or "Supp,"

It is respectfully requested that the

Court particularly note and consider the

following relevant facts:

That a three-Judge panel, in the first

paragraph of its Order that was filed

October 1, 1969, copy of that Order being

Document 13 in the Certified Transcript

of Record and vage xviii of the Supple-

ment, denied a motion of the Appellant

for a 4-day extension of time from Sept-

ember 8, 1969, a Monday, "to and including

September 12, 1969" for filing Appel-

lant's Brief as it were, in the phrasing

of the Order, a motion of the Appellant,

Mrs, Warwick, for an extension of time

"for filing his brief, in the above cause,

to and including September 15, 1969, and

in the second naragraph of that Order

granted a motion of the Appellee, in

effect, to dismiss the appeal for failure

of the appellant to file her Brief by

September 8, 1969 (Supplement p, xi);

but that said motion of the Appellee

to dismiss the appeal was not et tes

Shown on its face unti

September 12, 1969, the date Appellant's

sreif was, in effect, filed; that the 4-

volume very lenethy Apvendix, offset

printed, had been timely filed on Sept-

ember 2, 1969, as shown in Docket Entries

(Supp, pn. i), even though an uncontested

Order of the Clerk had granted a 6-day

extension, the first extension, for

filing both the Appendix for the Briefs

and Appellant's brief to and including

September 8, 1969; that the undersigned

attorney for the Appellant by letter dated

September 6, 1969, to the Chief Deputy

Clerk gnd the Senior Clerk, confirming his

longs distence telephone request made the

day before to the Senior Clerk, in ab-

sence of Chief Deputy Clerk, requested.

4.day-extension from September 8, 1969

for filing Appellant's Brief, and that

said letter, stamped. as received in

Clerk's Office, on \September 8, 1969,

and indicating the Senior Clerk had

said in telenhone,; conversation on Sept-

ember 5, 1969, suteh requested extension

would -be granted, is attached beneath

the motion of the Appellant for 4-day

time extension, the motion and letter

together being Document 9 in the certi-

fied transcript of the Record (Supp, pp,

4, 5, 6, 7, 8, 8a, 8b); that Appellant,

in said motion, @ part of Document 9

(Supp., pp. 4-8), moved only "that an

extension to end including September 12,

1969", from September: 8, 1969, be:

eranted for filins her Brief, but that

the first paracraph of the Order;, filed

October 1, 1969, denying the motion for

————

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time extension, and the second parecreph

of that Order (Document 13, Supp., DP,

xviii), granting the motion of the Ap-

pellee to dismiss the appeal, were ob-

viously predicated on the erroneous as-

Sumption that Appellant had moved for

an extension "to end including September

15, 1969" for filing the Brief,

The copy of the entries of "Filing-

Proceedings" in the United States Court

of Appeals (Supplement, p, 1) contains

an entry showing the filing of the Ap-

pendix, consisting of Volumes I through

IV, on "9/2/69", The Index of the Certi-

fied Transcript of Hecord attached be-

neath the certificate of the Clerk of the

Court of Appeals at bottom of that Trens-

cript shows Volumes I, JI, and III of the

Appendix and @ Volume IV, uxhibits, are

in the certified record, Volume 1 of

that Appendix contains offset printed

copies of papers filed for the parties

and Orders of the Court filed in the

case in the United States District Court;

Volumes II and III of the Appendix con-

tain the Official Reporter's transcript

of the portions of the proceedings in

the United Stetes Distrtct Court de-

Si-nated by the vlaintiff-Appellant,

Betty Pittman Warwick, for inclusion

in the trenscript, Volume IV of the

Appendix contains reproductions of the

Exhibits proffered by the by the parties,

'he Appendix shows that Betty Pittman

Warwick, a resident of Atlanta, Georgie,

brought the suit against carry S, Segan,

for damares for physical injuries sustained

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by her when she was struck on Piedmont

Avenue in Atlanta, Georgia while she was

walking from one side of Piedmont Avenue

towards the opposite side, by an automo-

bile then owned and operated by Barry S,

Seman; that at the time she was so in-

jJured Barry S, Segan was a resident of

Atlanta, Georgia, but within about two

weeks moved from Atlanta and became a "

res*dent of Tampa, Florida; that jury —

trial of the case for more than three

da, was held in Tampa, Florida; that

‘judement entered following the trial was

for the Defendant and against the Plain-

tiff; that, after filing of timely motion

by the Plaintiff for new trial and denial

of the motion, without a hearing, timely

notice of appeal by the Plaintiff from

the judgement to said Court of Appeals and

bond for appeal costs were filed,

The Appellee,:-in his motion, moved the

Court of Appeals for an Order for alleged

failure of the Appellant to timely prose-

cute the appeal, The grounds set forth in

the motion show, in effect, it is based

on the fact Appellant had not filed her

Brief on or before September 8, 1969, the

time to which a Six-day extension from

September 2, 1969, had been sranted( Supp.,p.xi ).

In his said motion, the Appellee re-

faxes te an “Order of the Court dated Sep-

tenber 9? 1°69", sranting the Plaintiff

additional ime to file her Brief, An

entry on the "Filings-Proceedings", copy

of which in the certified record, reads

"9/2/69 Fle, ext, 9/8/69-Appellant's

"r, & Reproduced Appendix-(GG) NFF"(Supp,p.i).

Initials "(GG)" are those of Mr, Gilbert

anucheau, the Chief Denuty Clerk, who

‘i igs,

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himself granted and signed the Order

allowing the extension from September xy

1969, to and including September 8, 1969,

for filing both the Brief and Appendix,

However, Appellant did not use any of

the time in the six-day extension granted

for filing the Appendix, and timely filed

the lengthy offset printed 4-volume Ap-

pendix on September 2, 1959, as shown in

certified copy of the '"Filings-Proceedings",

which wil] hereinafter be referred to as ©

"Docket Sntries" (Supp. ,p.i).

The Appellent!'states in paragraph. 5

of her: motion.for 4-day extension to and

including; Septefber 12%, 1969 for filing

her Bri¢f, copy of which motion nd Amend- ~

ment thereto beinr on pages iv-x of Suppl,,

that the Order of ...0 onie. wep vy vaierk

sranting the extension to. and including

September 8, 1969, had a stamped notice

thereon that »o further extension should

be requested However, the notice did

not indicate that, in event of emergent

need, arisin, from necessitous circume

stances, no further extension would be

sranted,

Appellant stated in paragraph 5 of

her motion for the 4-day extension for

filing her brief that the undersigned

attorney for the Appellant telephoned the

Clerk's Office on September 5, 1969,

which was three days before expiration

of the extended time, talked with Mr,

Richard Windhorst, Senior Clerk, after

requesting to talk with the Chief Deputy

Clerk and being informed he wes not avail-e

able; that the undersigned attorney then

made request over the telephone to the

Senior Clerk for a 3-day extension for

~-10=

filing the Brief; that the Senior Clerk

then said the extension would be sranted

if the undersigned would mail letter re-

quest for it and send copy of the letter.

to opposing counsel, which the undersigned

did, The motion of the Appellee to dis-~

miss the appeal contains statements 81so

that counsel for the Plaintiff made oral

request on September 5, 1969, for an

additional extension and followed that

with a letter of September 6, 1969,

Showing frrounds for seeking the extension,

but contends that the grounds set forth.

in the undersigned's letter of September

6th were insufficient,

Paragraph 6 of the motion of the Ap=

pellant for 4-day extension-to and in-

Cluding September 12, 1969, reads:

"6, In that letter, addressed

to the Chief Deputy Clerk anda

Chief Clerk, which was received

in the Clerk's Office on Sep-

tember 8, 1969, the undersigned

requested 3 or 4 day extension

from September 8, 1969, and stated

the 4 day extension was urgently

needed, On this morning, Septem-.

ber 9, 1969, the undersigned re-

ceived telephone call from Mr,

Wimdhorst, in which he stated a

telegram and telephone call had

been received from Opposing coun-

sel in opposition to further ex-

tension for filing Appellent's

Prief,’ Mr, Windhorst requested

that motion be sent for the ex-

tension of 4 days requested and

indiceted, insofar, as the Clerk's

wits

Office was concerned, it would

be favored," (Supp. ,p.vii )

| The copy of the Docket Entries in the :

certified record contains the following

entries: . :

"1/10/69 Fle, Motion of Apnellant

for &xt,. of time for Filing brief",

"9/15/69 Appellant's Amendment of f

Her Motion for a 4eday extension" ,(Supp,p.i

The number ‘of the month shown in said

entry "1/10/69" obviously is a typographicel

error and was intended to be "9/10/69",

the last date entry above it being

"9/2/69,

In “Appellant's Amendment of Her

Motion for a 4-day Time Extension". for

filing her brief, copy of which in the

certified record, she struck paragraph

7 of her said motion, substituted there- _

for and in lieu thereof the following:

"7, The undersigned is mainly

‘responsible for arranring the

continued urrently needed stay

of his 86-year old father, a

Widower, as a patient ina medi-

cal-care nursing home, located

about 125 miles from.Atlanta, Ga,,

where the undersigned has his

office and about. 15 miles from

where his father had been living,

and for insuring that his father

has special medical csre when

needed over anc ebove that pro-

vided by said home, It was neces-

sary for the undersigned to assume

financial responsibility for keeping

; 312—

"his father in that nursing home

for most of the time he has been

@ patient there, -In order to

carry out his responsibility for

_ insuring needed medical care and

causing his father's bills at”

that home to be paid, part of

which paid by the undersigned,

, lt has been necessary for the

undersigned to make very frequent

trips to the nursing home and to

Svend considerable time on the

trips on matter nearby in which

his father has a financial in-

terest,

During vart of last year, the

undersigned was a Conrressional

candidate and for several months

thereafter was a contestant in

election fontests as to’the out-

come of that race, One of those

contests is not yet determined,

Durine thet period of time, in

which he lost much time from his

law practice,-.there became an ace

cumulation of matters of an emer-

ment nature in his practice, It

became necessary for-’him to obtain

leave of absence from a Court in

Atlanta part of this year because

of said situation, ~ In reéent weeks,

he has been under a heavy load of

work in his practice, barely having

time to get enough rest, such that

. he has not been able to take time

to get very urgently needed dental’

care and work, the lack of which is

adversely affecting his general

health,". :

-13-

"In order to get completed Appel-

lant's Brief in this appeal in

time to have it mailed, Air Mail,

on Sevtember 12, 1969, last day

of the time extension he had re-

quested by motion, necessary for

him to work on the Brief in his

office all night on nicht of

September 11, 1969, "(Sunn, pvp,

ix-x),

fhe father of the undersigned attorney

died on November 5, 1969, et the Nursine

Home to which reference is made in the

said Amendment to the motion,

It is requested that reference be

made to an entry in the Docket Sheet, en-

titled "Filines-Proceedings", which is

vase i in the "Supplement.to the State-

ments of the Case” hereinafter and is page

2 of the certified Transcript of the re-

cord, the entry heing "9/12/69 Fle, Motion

of Appellee to Dismiss",

It is requested that reference be made

also to the two Exhibits thet are atteched

in the certified record and in the "Sup-

plement to the Statement of the Case"

hereinafter beneath and to the motion of

appellant for reconsideration as to the

Order filed October 1, 1969 and for re-

instatement of the appeal, said Exhibits

being pares xxxi and xxxii of said "Sup-

plement", which follows next herein the

last page of this "Statement of the Case”,

With respect to.said two exhibits,

paragraph 10’of the motion for recone

. Sideration as to the Order filed October

«jin

1, 1969, and for reinstatement of the

appeal reads as follows, that motion

being Document 14 in the certified record

and beginning on page xx of the "Supple-

ment to the Statement of the Case";

"The original of notations and

Post Mark made and initialed

by Mir, James F, Wright, Post

Office Clerk, who received the

two boxes (one containing 12

copies of Appellant's Brief and

the other containing 13 copies

of it) at a window of the Federal 2

Annex, the main Post Office in

Atlanta, Georrid, between 11:30

and 12:00 P.M, on September 12,

1969, and a signed Statement by

Mr, Wright obtained from him,

the oririnal thereof, as to that

mailing are ettached to the ori-

final of this motion, and photo-

copies of the said initialed no-

tations and Signed statement of

Mr, Wright are attached to each

copy of the motion, and made parts

hereof," :

In the statement obtained from said

Mr, Wright three days after said mailing

thet is one of said two exhibits, the

Post Office Window Clerk, Mr, James F,

Wright, says:

"Qn the- 9/12/69, Mr, Lowe* mailed

two packagzes Air Mail to New Or-

leans, La,

"They were mailed between. 11: 30

, PeM. & 12:00 P.M, ofr that date

“and addressed to;

Chief Deputy Clerk

U, S, Court of Appeals

5 Circuit ..

400 Royal Street

New Orleans, La,"

The notations on the said Exhibit

bearing the initials "J, F, W, Clk,",

which are the initials he signed, and

bearing the Post Mark."Sep 12, 1969",

with his.signed initials in the Post

Merk also, together show that $5,73 was

paid for postage for one of the packages

and %6,23 was paid for postage for the

other package on September 12, 1969,

In this connection, an applicable

part of Rule 25 (a) of the Federal Rules

of Appellate Procedure is quoted next:

"##%Filing may be accomplished

by mail addressed to the clerk,

but filing shall not be timely

unless the papers are received

by the clerk. within the time

fixed for filing, except that

briefs and appendices shall be

deemed filed on the day of

mailing if the most expeditious

form of delivery by mail, ex-

cepting special delivery, is

utilized,” (Emphasis added)

It is thus clear that it was necessary

for the 25 offset printed copies of .

Appellant's Brief to be deemed filed

on September 12, 1969, such mailing Air

‘ail of them being “the most expeditious

form of delivery by.,mail, excenting

Special delivery", | ia

athe

” rurthernore. it is also clear that

the 25 offset printed copies of Appel-

lant's brief were not deemed either by

the Clerk or by the three-judge panel as

filed on September 12, 1969, although

the post marks on the packages and the

"Air Mail" stampings on them Showed they

had been mailed Air Mseil on September 12,

1969, An entry in the "Filings-Proceed-

ings", which is page i in the said "Su-

pplement to the Stetement of the Case"

hereinafter and page 2 of the certified

lrenscript of the Record, reads; "O425460,

Higy-Appedtiantts-Beief ()),"

It is evident that the filing was ori-

sinally indicated on the Docket Sheet

by some Deputy Clerk, other than Mr,

Ganucheau, the Chief Deputy Clerk, or

Mr, Windhorst, the Senior Clerk, since

the initial "(MM)" was not the initial

for the last name -of either, It is

Shown in the motion of the Appellant for

the 4-day time extension, her motion for

reconsideration and reinstatement, and

her reply to the motion to dismiss, all

being in the certified Record and in the

“Supplement to the Statement of the Case"

hereinafter that the only Deputy Clerk

with whom the undersigned talked in his

telephone calls made to the Clerk's Of-

fice were Mr, Ganucheau or Mr, Windhorst,

It is obvious that the Deputy Clerk

who made the original entry as to the

time of filing Of Appellant's Brief as

"9/15/69", “which entry being later

marked over and no entry being shown on

the Docket Sheet as to such filing being

on September 12, 1969, disregarded the

ae al

«1%=

post marks of "Sep 12 69", the stampings

of "Air Mail" on the two packages of the

briefs before the wrappings were removed,

and the herein before quoted applicable

part of Rule 25 (a), A, R, A, P.

In conjunction with the foregoing

statements, there is Quoted next para-

graph 8 of Appellant's motion fcr re-

consideration as to the two- paragraph

Order filed October 1, 1969 and for re-

instatement of the appeal, which motion

and amendment thereto being on pages xx

through xxxv of the S@id Supplement here-

inefter: . \

si «a Deputy Clerk of this

Court informed appellant's

attorney ina telephone ton-

versation in afternoon of\

October-10, 1969 that boxes

to be déstwyed at about the time

briefs received in the Clerk's

Offices, the two cardboard boxes, ome

were mailed, Air Mail, by the

undersigned at a Window of the |

main Atlanta Post Office afew .

minutes before Midnight of Sept-

ember 12, 1969, ana each post-

marked "S&P 12 1969", A letter

of transmittal was enclosed in |

the cardboard box containing the

copies of the appendix, that was

—————E

-18—

received in the Clerk's office

on September 2, 1969 timely,

the box having been sent by Air

mxpress, However, no letter of

transmittal was enclosed in either

of the two cardboard boxes, one

conteining 12 copies of Appellant's

brief, and the other containing |

13 copies of that Brief, in this

appeal, both mailed at same time,

Air Mail, postage prepaid, in the

Atlanta Post Office. by the under-

Signed before midnight of Septen-

ber 12, 1969, and received in the

Clerk's Office on September 15,

1969, @ Mondey; and not any: Letter

as to.transmittal of the copies of

that Srief was ever sent, separately,

_to the Clerk's Office, The under-

- Signed had stated over telephone

on September 11, 1969 to the

Chief Deniuty»Clerk that he would

mail, Air Mail, on September 12,

1969. the copies of Appellant's

Brief for filing,

In said quoted paragraph 8, the under-

Signed attorney for the Appellant states

no letter of transmittal was enclosed in

either of ‘the two cardboard boxes con-

_ taining a total of 25 copies of Appellant's

Brief mailed, Air Mail, by him at a window

of the main Atlanta Post Office a few

Minutes before midnight of September Le.

1969, However, it is Stated in the last

Sentence is said quoted paragraph 8 that;

"The undersigned had stated over

telephone on September 11, 1969

to the Chief Deputy Clerk that

wit

he would mail, Air Mail, on

September 12, 1969 the copies

of Appellant's Brief for filing,"

- Since September 12 was a Friday and the

Office of the Clerk of that Court of Appeals

is closed on Saturdays, it is evident that

the two said boxes could not be received

in that Clerk's office until the following

Monday, September 15, In this connection,

reference is made to page ii-a of the

Supplement hereto whereon appears a

photographic copy oft a letter of the

Chief Deputy Clerk, dated January 23,

1970, to the undersigned attorney with

respect to Appellant's Brief in the case,

The original of that letter is attached

on top of the first page of the certified

Transcript of the Record, but it is not

one of the documents in that Transcript

to which the certificate of the Clerk

relates, |

It definitely appears, therefore, that

the three-Judge panel, which in their

Order filed October 1, 1969, denied Ap-

pellant’s motion for 4-day extension "to

and including September 12, 1969" for

filing the Brief, as stated in the Order

as if it were a motion for extension "to

and including September 15, 1969" and

eranted Appellee's motion to dismiss the

appeal on grounds the Brief had not been

filed by September 8, 1969, were unaware

that the date of filing of the Brief,

under Rule 25 (a), F, R, A, P,, would

have been September 12, instead of Sept-

ember 15, 1969, The only entry in the

"Filings-Proceedings" (Supp., p.i),

Which are in Document 5:at front of the

=20e

Transcript of the Record, with respect

to the Brief is "9415/60-¥ig,y-Anvetlanstea

Brief-{4}", This shows that soe Deputy

Clerk, having initial "M", upon receipt

_, of the two boxes of the Briefs. in Clerk's

Office.on Monday, September 15, made said

docket entry and probably, after becoming

aware of the filing of Appellee's motion

to dismiss the appeal, marked over said

docket entry, As stated in the hereir.

before quoted paragraph 8 of the motion

for reconsideration, the undersigned

attorney hed rotified Mr, Ganuchesau,

Chief Deputy Clerk, ina telephone con-

versation on September 11, 1969, that he

would mail the’copies of the Brief, Air

Mail, on September 12, 1969, The said

initial "M" is not an initial on any

name of Mr, Ganucheau, ;

No reply of the Appellee tothe mot-

ion of the Appellant for said 4-day time

extension was ever made, although the

motion to dismiss the appeal was filed

on same date, September 12, 1969, as the

date Appellant's 4rief was lawfully due

to be deemed filed, Citations of de-.

cisions will be riven in the "Ar ment"

hereinafter that show in effect. a

motion to dismiss an apvea or failure

“Of an appellant to file timely a brier

should not be eranted if the motion is

not filed before the Brief is filed,

Moreover, the Appellee did not file

@ reply to Appellant's motion for recon-

Sideration as to the Order of October 1,

1969 and reinstatement of the appeal,

which motion was entertained by the

Said three-Judge panel and denied by

oeccR ees “a

Rcrmbeceuics on

“™

uety

-21-

Order filed November 11, 1969, until 12

days: after the motion had been served or

11 days after it had been filed, He was

later in filing his said reply to the

motion, under applicable 27 (a) and (b),

F., Rk, A, P,, than Appellant was as to the

time her Brief was due to be deemed filed,

under applicable Rule 25 (a), Federal

Fules of Appellate. Procedure. Part ofsaid

Rule 27 (a), and al] of (b) F. Rk, A. a.

are quoted’ next:

"(a)#### Any party. may file a

response in opposition toa

motion other than one'for a

procedurel order (for which

see subdivision (b)) within ~

7 days after service of the

motion, but motions authori-

zed by Rules 8, 9, 18 and 41,

may be acted upon after reason-

able notice, and the court

may shorten or extend the

time for responding to any

motion,"

"(b) Determination of Motions

for Procedural Orders, Not-

» withstanding the provisions

of the preceding paragraph

as to motions senerajly, o

motions for procedural or-

ders, including any motion

under Rule 26 (b) may be. '

acted upon at any time, with-

out awaiting a response there-

to, -Any party adversely af-

fected by such action may re-

quest reconsideration, vaca-

tion or modification of such

action,”

The second page of the "Filings-Pro-

ceedings" (Supp,,p.ii) shows motion of

Appellant for reconsideration was filed

"10/16/69" and Appellee's reply thereto

was not filed until "10/27/69", ‘The

Certificate of Service at end of Ap- -

pellant’s motion for reconsideration

shows service of & copy by mailing on

October 15, 1969 (Supp., p. xxx), Ap-

pellee was, therefore, five days late,

under Rule 27 (a) and‘(b), F, eS Ree ae

in filing his reply to said motion,

an,

‘

. o

SUPPLEMENT TO THE "STATEMENT OF THE CASB:

COPIES OF DOCUMENTS IN THE CERTIFIED TRAN-

. SCRIPT OF THE RECORD ~

27903

—

Date r. Filings-Proceedings

7/22/69 |} Fle, Appellant's Motion for

com exteysion.of Time to File

Appendix and Brief, GRANTED- _

30 days from court ruling on . .

, motion to strike & dismiss, ;

8/1/69 .- Fle. Order DeéNYING motions of

appellee to strike; further

DENYING appellee motion to’

dismiss appeal (WPG ILG DWD), at

aoahoe Pig, Supo, Record, — settee

3/25/69 Fle, Second Supplemental Re-

__. cord _on Appeal,

-97/2/69 Flg, ext, to 9/8/69 -.Appel-

‘ lant's Br, & Revroduced Ap-

pendix - (GG) NF&

— 9/2/69 ~ Flp. Appendix (m) (Vols, 1.

: - thru IV), (only 4 copies of |

+ VWol,-IV), aa a

1/10/69 : Fle, Motion of Appellant for

9/10/69 ; #xt, of Time for filing brief,

fe: : Flg, Gxt, to 9/12/69 = Ap-

. pellant's Br, - (REW)

9712/69 . Fig, Motion of appellee to

-; @Qismiss, x

9/15/69 * Fle. Appellant's Reply to

' Motion of the Appel tee ee

___ Dismiss Appeal ( copies), :

9/15769 ; Fils, Appellant's Amendment. of

Her Motion for a 4-day exten

} - gion...

SEE ar Coa sa=es ~Appeiiansla—neier—om

10/1/69 < le, Order Dk (G appellant's

|} motion for further extension

: of-time to file brief to

|° 9/15/69; further GRANTING

| appellee's motion to dismiss

appeal (HT LR GHC),

~~?

Date _ Filing-Proceedings

10/1/69 | Issg, Certified Copy of Dis-

{ missal Order to Clerk, Tampa,

r \ "Pla.

10/1/69 ; Supplemental & Second Sup-

plemental Record returned to

Clerk, Tampa,

10/16/69; Flag, Motion of appellant for

_ reconsideration as to the

; order of the Court denying

her motion for a 4-day ext,

for flg, appellant's Br, &

srantings: appellee's motion

_to dismiss the appeal & for

reinstatement of the appeal

4 t, copies

0723769 | a TS s Reply to the

Reply of Appellee to Motion

of Appellant reconsideration

as to the order filed on Oct,

1, 1969, denying appellee

motion for 4-day extension of

time for filing appellant's

»rief, ;

Fle, Appellee’s Reply to Ap-

pellant's Request for Recon-

Sideration of Order Denying

_lxtension of Time and Dis

missing Appeal,

Fle, Appellant's Amendment of

her motion for Reconsideration

~a@s-to the Order filed on October

1, 1969, and for Reinstatement

of the Appeal,

Flg, Order Denying appellant's

motion for reconsideration of

. Court's order denying appel-

| lant's motion for 4-day exten-

' sion of time for filing br, &

| grantins appellee's motion to

{

— >

_— ae =

10727769

11/3/69

Seid: o_o i ee

ice: coe

dismiss appeal; further. DENYING

/ appellant's motion for rein-

| “statement of appeal(HT LRM GHC),

ii-a

1 | United States Court of Appeals :

i FIFTH CIRCUIT

WADSWORTH OFFICE OF THE CLERK ; ROOM 408-490 WOYAL ST.

oar NEW ORLEAN. LA. 70130

January 23, 1970

ie, Wyman C, Lowe

Attorney at Law :

761 Carnegie Bidg.

Atlanta, Ga. 30303 . ores

uear Mr. Lowe:

NG, 27303 - Warwick v. Segan-

Conslying with your roquest by letter cated January

1S, this letter » ti certify that your orief ih the

above CaSe@ was recesived and filed in tinis office

moiday, Septembs. 15, eso: that under our practice

h wrappings, enve Lanes 1e8, packarmes, etc. are

estroyeu immediately wie. received and there is no

cord of the postmark date of trausmittal of the

ief available in cur file, nor does ovr file con-

in a@ covering letter of transmission of the brief.

Very truly ours,

EDWARD W, WADSWORTH, Clerk

G. F, Canuchead

Chief Deputy Clerk

GG :adg

ce~Mr. H, Shelton Philins

sesceeccs C8 Ric sc eceeccecs *

111i

U,S, Court of Appeals

FIL<# D

Aug 1 1969

SDWARD W, WADSWORTH ~ °

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 27903

BETTY PITTMAN WARWICK,

Plaintiff-Appellant,

versus e

BARRY S, SEGAN,

: Defendant-Appellee,

Appeal from the United States District

Court for the'Middle District of Florida

Before GEWIN, GOLDBERG AND DYER, Circuit Judges,

BY THE COURT: ;

IT IS ORDERED THAT the motions

of appellee to strike filed in the above

entitled and numbered cause be and the

same are hereby denied,

IT -Is FURTHER SRDERED THAT

appellee's motion to dismiss the appeal

be and the same is hereby denied,

Document No, 7

Filed

Sept, 10,°1969

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BETTY PITTMAN WARWICK,

Appellant,:

[vs | : APPRAL NO, 27903

BARRY S. S&GAN,~ :

Appellee, :

MOTION OF APPELLANT FOR TIME

EXTENSION

Now comes BETTY PITTMAN WARWICK, Appe-'

llant in the above Styled appeal, and moves

the Court, pursuant to Rules (26) b-and /

ore es: Bee P,, for an extension of time

to andincluding September 12, 1969, for

filing in accordance with Rule 25 (a)

Appellant's Brief, respectfully showing as

follows:

1, On June 17, 1969, the record on appeal

in said appeal was filed in the Office of the

Clerk of this Court, the required docketing

fee of $25,00 having previously been received

from the undersigned attorney for the Appellant,

‘2, On July 2, 1969, Appellee's counsel .

served by mailing copy of a motion to dismiss

the appeal, copy of motion. to dismiss “Appel-

lant;s Designation of the Parts of the Record

Which She Intends to Include in the Appendix",

Of which copy had been prematurely served by eras

Document No, 9

_ . a

: * 4 - - a

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bd ——

P F

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‘

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Fk Fi

‘

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é .

i .

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’

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P .

‘

. f° *

® £ nm

e =. ;

’

* ’ ? *

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: P

ee 1

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4 - . :

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’

Appellant's counsel on June 13, 1969, be-

fore the record was filed, and copy of

mation to dismiss "Appellant's Amended *

Designation of the Parts of the Record ai

Which She Intends to Include in the |

Appendix, striking said former Designation

and substituting therefor and in lieu

thereof a new Designation, copy of said |

Amended Designation having been served by

mailing to Appellee's counsel on June 27,

1969, “Within the next few days,. ppellee's

counsel served by mailing a copy of a

‘motion -to strike "Appellant's Amended

Statement of the Issues Which She Intends

to Present for Review", of which copy had

been served by mailing on June,27, 1969

to Appellee's counsel; and also served by

mailing on July 5, 1969 copy of a motion

to strike some of the said pleadings of the

Appellant or dismiss the appeal,.

ae 5

3. Appellant's undersigned attorney was

left in a state of uncertainty from the date

of receiving copies of said first motions,

served on July 2, 1969, whetherto proceed

with preparation and printing of the Appendix

* and Appellant's Brief’ or not until he re-

ceived on August 2, 1969 a Memo from the

Clerk, dated August 1, 1969, with accompanying

copy of Order of a three Judge panel showing

that the motions to strike and the motion to

dismiss the appeal were denied, He had pre-

viously received a Memo, dated July 24, 1969,

from the Clerk's Office Showing that on that

date "An extension’ of time to and including

30 days from Court ruling on motion to strike

and dismiss" has been granted "for filing re-

produced copies of the record---for filing

appellant’s brief," Subsequently, the under-

Signed wrote inquiry to the Chief Deputy Clerk

Whether "filing reproduced copies of the 4

record" meent, in effect, filing 10 copies

of the Appendix, as designated by the Appel-

lant, and received reply that it did, Thus,

the time for filing the Appendix and Appel-

lant's Brief was extended to and including

August 31, 1969, as August 31 was a Sunday _

and September 1, was Labor Day, the time was,

in ao extended to and including September

2,- i909, : )

4," On that date, September 2, 1969, 10-re- -

“produced copies of the Appendix for the Briefs

and four reproductions of all the exhibits, as

part of the Appendix, were received in the

Clerk's Office, On August 29, 1969, the under-

Signed telephoned the ‘Chief Deputy Clerk and re-

quested extension to and including September 8,

1969, for both filing the Appendix and Appellant's

Brief, stating frounds therefor, The Chief Deputy

Clerk stated to him then that, if he would write

letter to the Chief Deputy Clerk requesting ‘such

extension and mail copy of it to opposing counsel,

the extension would be granted, The undersigned

wrote such letter and so mailed a copy, stating :

grounds for the requested extension, Subsequently,

he received copy of Order Signed.by the Chief De-

puty Clerk granting thé extension to and including

September 8, 1969, | wae tes

5. On September 5, 1969, the undersigned

attorney telephoned the Clerk's Office and re-

quested to talk with the Chief Deputy Clerk,

Upon being informed’ that he was not available,

the undersigned ‘talked with Mr, Richard Windhorst,

Senior Clerk, Request was made to him for a three

day extension for filing Appellant's Brief, and Mr,

Windhorst was then informed that the Order of the

Chief Deputy Clerk granting said extension to and .

including September.-38, 1969 had on it a stamped no-

tation to effect that no further extension. should b

requested, Mr, Windhorst stated the exténsion

would be eranted if the undersigned mailed

letter request for it and sent copy of the

letter to opposing counsel, which the under-

Signed did, | .

6, In that letter, addressed to the

Chief Deputy Clerk and Chief Clerk, which

wes received in the Clerk's Office on

September 8, 1969, the undersigned requested

3 or 4 day extension from September 8, 1969,

and stated the 4 day extension was urgently

needed, On this morning, September 9, 1969,

the undersiened received telephone call from

Mr, Windhorst, in which he Stated a telegram

énd telephone call had been received from

opposing counsel in Opposition to further ex=

tension for filing Appellant's Brief. Mr,

Windhorst requested that motion be sent for

the extension of 4 days requested and indi-

cated, insofar, as the Clerk's Office was con-

cerned, it would be favored,

fo “ae undersigned continues to have necessity

of making frequent trips to his father, who is

6 years of are and a-patient in a medical

care nursing home, located :about 125 miles

from Atlanta, and to have to “look after" his

father, The pressure of accumulated matters ©

in the practice of the undersigned, matter of

energent nature, is very great, He practices

alone, His work load is so Sreat that he is

unable to get urgently needed dental care,- the

lack of which is affecting his health, =a

Ee .

WHEREFORE, Appellant moves that an extension’

to and including September 12, 1969, be granted

for filing Appellant's Brief,

WYMAN C, LOWE

ATTORN#Y FOR APPELLANT

«-

villi

-e

701 Carnegie Building

Atlanta, Georgia 30 303

CHRTIFICATS OF SSRVICH

' I hereby certify that I have on this

date, Sept, 9, 1969, served @ copy of the

foregoing motion upon Appellee's counsel,

by mailing in the U, S, Mails, postage pre-

paid, a copy addressed to Ramseur, Bradhan,

Lyle, Skipper and Cramer, 699 First Avenue,

North, St, Petersburg, Floride,

/S/ Wyman C, Lowe

WYMAN C, LOWE

« ~ é

“ity “

« + Jee .

v che - 2 allie

=* 34

3 ON uN

WYMAN C, LOWE

Attorney At Law )

Suite 701, Carnegie Building

133 Carnegie Way, N, W,

Atlenta, Georgia 30303

September 6, 1969

Mr, Gilbert F, Ganucheau,

Chief Deputy Clerk, and :

Mr, Windhorst, Senior Clerk,

United States Court of Appeals

Fifth Circuit | ,

400 Royal Street-Room 408

New Orleans, Louisiana

RE: WARWICK Vs. SEGAN-gNo, 27903

Dear Mr, Windhorst and Mr, Ganucheau:

The time limitation for filing the

required number of copies of Appellant's

Brief and the Appendix for the Briefs in

the above Styled appeal, as extended by

an Order by Mr, Ganucheau, Chief Deputy

Clerk, will be to and including Septem-

ber 8, 1969, The time limitation by

which both were due to be filed before

any extension of time was gsranted was

until and including September 2, 1969,

which was the next day after Labor Day,

& Monday, Ten copies of the Appendix

and four sets or volumes of reproductions

of the Exhibits included in the Appendix

+ Sey ry rece

vili-b

not available, I requested a three-day

extension beyond “September 8, 1969, for:

filing the required 25 copies of Appel-

lant's Brief, Mr, Windhorst Stated that

extension would be sranted upon my making

the letter to Apvellee's counsel,

The Appendix for the Brief consists

sreat task, I, as Appellant's attorney,

have been devoting much of my time to it,

but urgently need and request a 3 or 4

day extension beyond September 8, 1969,

for complying with the &applicable Rules

@S to filing of the Brief,

Sreat, so great [ can not take time. to

Set some urgently needed dental work

done,

_ Under these conditions, I'1] greatly

&ppreciate an extension until and in- '

Cluding September 12, 1969, which I

‘ . vilii-c

need for filing Appellant's Brief under

applicable Rules, or at least until and

_ including September ll, 1969, for that

purpose, ~ , |

I have mailed, postage prepaid, in

the U, S, Mails a copy of this letter

properly addressed to counsel of record

for thé Appellee, Ramseur, Bradham, Lyle,

Skipper & Cramer, 699 First Avenue North,

St, Petersburg, Florida,

Kindly mail Air Mail to me copy of

the Order as to this request, Enclosed

are Air Mail stamps,

Sincerely yours,

Wyman C, Lowe

WCLiwb

1x .

| _U.S, COURT OF APPZALS

PILED

SEP 15 1969

EDWARD W, WADSWORTH

CLERK

APPELLANT'S AMENDMENT OF HER MOTION

FOR A 4-DAY TIME EXTENSION

BETTY PITTMAN WARWICK, Avpellant in the

above styled apneal, amends as follows her

previously filed and served motion for a

-day extension from September 8, 1969,

for filing ‘ppellant's Brief;

By striking paragraph 7 therein, sub-—

Stituting therefor and in lieu thereof

the*followine:

"7, The undersigned is mainly 4espon-

Sible for arranging the continued urgently

needed stay of his 86-year old father, a

Widower, as a patient ina medical-care

nursing home, located about 125 miles from

Atlanta, Georriam where the undersigned has

his office and about 15 miles from where

his father had been living, and for insuring

that his father has special medical care

when needed.over and above that provided by

Said home, It was necessary for the under-

Slgned, to assume financial responsibility

for keeping his father in that nursing,

home for most of the time he has been a

patient there, In order to carry out his

responsibility for insuring needed medical

care and causing his father's bills at that

home to be paid, part of which paid by the

undersigned, it has been necessary for the

Document No, 12

undersigned to make ‘very freauent trinvs

to the nursine home and to snend considerable

time on the trins on a matter nearby in which

| his father has a financial interest, |

During the part of last year, the under-

Signed was a Conrressional candidate and

for several months thereafter was a contestant

in election contests as to the outcome of that

race, One of those contests is not yet deter-

mined, During that period of time, in which

he lost much time from his law practice, there

became an accumulation of matters of an emergent

nature of his practice, It became necessary

for him to obtain leave of absence from a :

Court in Atlanta part of this year because

of said situation, in recent weeks, he hes

been under a heavy load of work in his practice,

barely having, time to ret enourh rest, such.

that he has not been able to take time to get

very urzently needed dental care and work, the

lack of which is adversely affecting his reneral

health, ,

In order to ret completed Apnellant's —

brief in this anpeal in time to have it

méiled, Air jail, on September 12, 1969,

last day of the time extension he had re-

quested by motion necessary for him to

work on the @rief in his office and on night

of September 11, 1969,"

WYMAN C. LOVE

Attorney for Appellent

Corivinal si-sned)

701 Carnezie Buildinz

Atlenta, Seortia

SERTIFICAT®S OF SERVISE

I hereby certify that I have on this date fuinished

counsel for said Appellee with a copy hereof by me i.iing,

posteze prepaid, a copy in the U. S. Mails, addressed to

Remseur, Bradham, Lyle, Skipper end Cramer, 699 First

Avenue North, St. Petersburg, Fle. J

WYMAN ©. LOWE (Orisinal sizned)

og eT rere

U, S, COURT OF APPEALS

FILED

SEP 12 1969 ae

EDWARD W, WADSWORTH

CL2RK

MOTION TO DISMISS

The defendant appellee, BARRY §S, SEGAN,

by- and throurh his undersigned attorneys,

hereby moves this Court for an Order dis-

missing this appeal for ailure totimely

prosecute his anneal in Ves saatuce with

the Federal Rules of Appellate Frocedure,

As mrounds for seeking this Order,

defendant refers to Order jof this Court

dated September 2, 1969 allowing plain-

tiff an additional time to\file her brief,

the Order further stated that no further

extension of time should be, requested, On

Sevtember 5, 1949, counsel for vlaintiff

made oral request for an additional ex-

tension, and followed this with a letter of

September 6, 1969, formulatine her grounds

for seeking the added extension, Plaintiff's

grounds for extension as therein set forth

are Simply insufficient to continue allowing

time extensions, when such extensions are

clearly not within the "Fifth Circuit Policy”

Notice from Chief Judge John R, Brown, which

accompanied the Spetember 2, 1969 Order of

Court,

WHEREFORE, Defendant prays for an Order

dismissing the above Styled anneal with

pre judice,

/S/_James R, Lyle

of Ramseur, Bradham, Lyle, . 2

Skipper & Cramer

699 First Avenue North ,

St, Petersburr, Florida 33701

Attorneys for Defendant Appellee,

Document No, 10

as Af

xii

U.S, COURT OF APPEALS

FILED

SEP 15 1969"

EDWARD W, WADSWORTH

CAPTION OMITTED CLERK

APPELLANT'S REPLY 0 MOTION oF.

THE APPELLEE TO DISMISS APPEAL

BETTY PITTMAN WARWICK, Appellant in-«

the above styled appeal, responds as

follows to the motion of the Appellee,

BARRY S, SEGAN, to dismiss the appeal

for alleged failure to prosecute timely

the appeal in, accordance with the Federal

Rules of Appellate Procedure, copy of the

motion having been served by mailing on

September 9, 1969: -

~/ LF 4

.. 1. (On August 1, 19692) an Onder of a

three-Judge panel of.-thif Court was

filed in this appeal, ithe Order denied

the motions of the Appellee to strike

and métion of the-Appellee to dismiss

the appeal, The Appellee's counsel of

record had served five or six motions by

mailing to the undersigned attorney for

the Appellant between July 1, 1969 and

July 7, 1969, One of said motions ser-

ved by mailing on July 2, 1969, was a motion

to dismiss the anpeal and another said

motionrwas one served by mailing on

July 5 or 6, 1969, alternatively, to

dismiss the appeal, or strike certain

papers filed for\the Appellant, The

remainder of said motions were to strike

certain papens filed for the Appellant, -

Every one of the motions to strike, .the

motions to dismiss, and the motion to

dismiss or to strike were served by the

Appellee by mailing prior to the serving

by mailing of the Appvellee's motion to

dismiss the appeal to which response is

made herein, Thev wére predicated, each

one, upon the erroneous assumption that

the record on appeal had been filed prior

Document No. 11

to June 17, 1969, However, a Memo that -

the undersigned had received from the Clerk's

Office on or about June 18, 1969, dated

June 17, 1969, indicated that the record

on appeal was filed that day, One of the

motions to strike was to strike "Appellant's

Amended Desirnation of .the Parts of the

Record Which She Intends to Include in the

Appendix", served by mailins on June 27.

1969, in which Appellant struck her De-

' Slgnation that had been served prematrely

on June 13, 1969, Substituted therefore and

in lieu thereof her "Designation of the :

Parts of the Record Which She Intends to |

Include in the Appendix", Another of the

Said motions to strike was one to strike

"Appellant's Amended Statement of the

view", served by mailing on June 27, 1969,

in which Appellant struck her previously

served Statement, substituted therefore and

in lieu thereof her "Statement of the

Issues Which She Intends to Present for

' Review", ; ‘

a, Thiz attorney had received prior

to receiving a copy of said Order, filed

August l, 1969, denying the motions to

Strike and the motion to dismiss, a Memo

from the Clerk's Office indicating that

days from date of Order on “motion to

Strike & dismiss" would be granted "for

filing reproduced copies of the record"

Xiv

Signated for the Appellant, and received

reply to the effect that it did, Said’

30-day extension from August 1, 1969, was

to and including Aveust 31, 1969, Since

August 31, 1969 was a Sunday and September

1, 1969, Labor Day, a legal holiday, said .

extension was: effective to and. including

September 2, 1969,

3, On that date, September 2, 1969,

10 copies of the Appendix, as designated for

the Appellant and reproduced by offset

printing, together with 4 reproductions of

each of the about 30 designated Exhibits, as

part of the Appendix, were timely received

in the Clerk's Office <= the undersigned,

the “exhibits :

therein, is about 750 pages in length, and

is in three volumes,

4, On August 29, 1969, the undersigned

attorney telephoned the Chief. Deputy Clerk

and requested extension to and including

‘September 8, 1969 for filing the required

number of copies of. the Appendix and |

Appellant's Brief, The Chief Deputy Clerk

Stated the time extension would be granted

if this attorney would mail him a letter

requesting the extension and mail copy of it

to opposing counsel, That was done, The

letter request was received in the Clerk's .

Office on Sentember 8, 1969, Since the

Appendix had been received timely on September

2, there was no need for the extension as to

filing it requested previously, The Chief

Deputy Clerk, in an Order dated September 2,

1969, cranted the requested extension as to

filing both the Appendix and the Brief, The

Order had notice stamped on it that no further

extension should be requested,

nes

mae ee

aes

5. On September 5, 1969, the under-

Signed attorney telephoned the Clerk's

Office and requested to talk with the Sraes

Deputy Clerk, Upon being informed that the

Chief Deputy Clerk was not available, but

the Senior Clerk, Mr, Richard Windhorst,

was, this attorney talked with Mr, Windhorst,

Request was then made to him for the 3-day

extension, grounds being stated., and state-

ment being made about said notice on the

Order extending the time to and including

September 8, for filing Appellant's Brief,

Mr, Windhorst said then the extension re-

quested would be granted if this attorney

would mail to the Clerk's Office a letter

, requesting the extension amd mail copy to

Opposing attorney, This attorney promptly

mailed a letter, addressed to the Chief

Deputy Clerk and the Sénior Clerk, requesting

& 3 or 4-day extension from September 8, 1969

~—~fer filing Appellant, a-Brief, Stating the

4-day extension was urgently needed, and

giving grounds, The letter was received in

the Clerk's Office: on September 8, 1969, On

the morning of September 9, this attorney .

received a telephone call from Mr, Windhorst

in which he said Opposing counsel had objected

by telerram and telephone call to the Clerk's

Office to any further extension, This attorney

never received copy of the telegrem from

Opposing counsel, Mr, Windhorst requested that

motion be mailed by ‘the undersigned to the

Clerk's Office requesting the 4-day extension

and copy be mailed to Opposing counsel, and

indicated insofar as the Clerk's Office was con-

cerned the 4-day extension would be approved,

but there would be need for ruling on the

motion by the Court, ‘The undersigned promptly

mailed original and 4& copies of the motion to

the Clerk's Office and copy to Opposing: counsel,

—

6. On September 10 or 11, 1969, this

attorney received by mail copy of motion

of Appellee to dismiss the appeal for

alleged failure to prosecute it timely,

He called the Chier Deputy Clerk on

September ll, 1969, -and asked whether or

not he should proceed, without waiting for

ruling on the said motion to dismiss, to

eet Appellant's brief completed and sent

fir Mail to the Clerk's Office on Septem-

ber 12, 1969, the earliest he could pos-

Sibly do so, fhis attorney was advised that

he should and should mail response to the

motion, After working, among much other

time, all night the night of September 11

in his office on Appellant's Brief, this

completed on the afternoon of September 12,

- 1969, and he mailed it at the Atlanta Post

Office, on September 12, 1969, in 25. copies,.

to the Chief Deputy Clerk, Air Mail, each of

being postmarked September 12, 1969. Ke

understands that such mailing, Air Mail, of ,

Appellant's Srief, is equivalent to filing

it on September 12, 1969, under the appli-

‘cable Rule in PF, KR. A. P,, which provides

that sending of an Appendix or Brief by the™

Expeditious method, exclusive of Special

Delivery, ona day will, in effect, be’ con-

Strued to be filing on that day,

7, The undersigned is sending to the

Clerk's Office an amendment to his motion for

the 4-day extension from September 8, 1969,

Showins; grounds i ddition to these stseted

in the motion a Showing that under the |

a fies

a US respectfully pointed out that

the undersigned attorney did not receive

with respect to the motions 6d? Appellee,

WHEREFORE, it is respectfully requested

that the motion of the Appellee Stated to

dismiss the appeal be denied,

WYMAN C, LOW: =

Attorney: for Appellant

(Original Siened )

701 Carnerie suilding

Atlanta, Georgia 30303 | oN

‘Sept, 12, a Served a copy of the foregoing

cord for the Appellee by mailing, bostage pre-

paid, in the U, S;, Mails, copy addressed to

Hamseur, 5radham, Lyle, Skipper and Cramer,

699 First Avenue ‘North, St, Petersburg, Floride,

WYMAN c. tows

Attorney

xviii

~U.S, COURT OF APPEALS

'P-E 2 5

: vey Ost”, 1° = 1969

Edward Ww, Wadsworth

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No, 27903

BETTY PIQ[MAN' WARWICK,

Plaintiff-Appeltant,

versus

BARRY S, SEGAN, .

Defendsnt-Appellee,

’ — = _ _ ~

Appeal from the United States Dis-

trict Court for the Middle District

of Florida»

Before THORNBERRY, MORGAN and CARSWELL, .

‘Circuit Judges,

BY THE COURT:

: _ It is ORDERED that appellant's motion

for a further extension of time for the

ng filing of his brief, in the above cause,

. to and including September 15, 1969, is.’

hereby DENIED, | iyi ie aC

_ IT IS FURTHER ORDER that appellee's

motion to dismiss this appeal is hereby

GRANTED, : |

Document .No, 13

ees

en ed

wwe

oe soe Cie SK a

OCT 16 1969

caBrion OMITTED

APPELLANT'S MOTION FOR RECONSIDERATION

AS TO THE ORDER OF THE COURT DENYING

HER MOTION FOR A 4-pay EXTENSION FOR

FILING APPELLANT'S BRIEF AND GRANTING

APPELLEE'S MOTION TO DISMISS THE APPEAL,

AND_ FOR REINSTATEMENT OF THE APPEAL

Now comes BETTY PITTMAN WARWICK, ap-

pellant in the above Styled appeal, and

moves the Court for reconsideration as

to the Order of the three-Judge panel

filed October 1, 1969, denying appellant's

motion for a 4-day extension of time from

September 8, 1969 for filing Appellant's

Brief, its Order filed October 1, 1969

granting the appellee's motion to dismiss

‘the appeal, and for reinstatement of the

appeal, respectfully showing as grounds

therefore as follows;

il. <A Memorandum Sent. to the under-

-$igned attorney from the Office of the

Clerk in July, 1969, gave notice that

appellant would have to and including 30

days from the date of an Order on the

appellee's motion to strike and dismiss

"for filing reproduced copies of the re-

cord" and "for filing appellant's brief",

The undersigned then wrote a letter to

the Chief Deputy Clerk inquiring whether

"filing reproduced copies of the record"

meant filing ten reproduced or printed

copies of an appendix for the briefs

containing the portions of the record

previously timely designated by the

appellant for inclusion in the appendix,

and received a reply that it did. on

August 2 or 3, 1969, this attorney re-

ceived a Memorandum from the Clerk's

Office indicating that the Order of which

Document No. 14

xxi

2 va

e Fad

‘cOpy attached thereto had. been rendered,

The Order denied the motions of the

appellee to strike and denied his motion

to dismiss the appeal, A statement in

parenthesis at bottom or the copy of the

Order showed the Order was filed on

August l, 1969, Therefore, appellant

Was allowed to and including August 31,

1969, for filing the appendix and ap-

pellant's brief, Since August 31 was

& Sunday and the next day, September cm

was Labor Day, a legal holiday, under

Rule 26 (a), Fel, Pe &@ppellant\ was

&@llowed to and including September ey

1969, for said Purposes, The required

number of copies of the very lengthy

2, On August 28 or 29, 1969, this

attorney, ina long distance telephone

6 days, was needed for

brief, that he ex-

ber 2, 1969, but that it would be best for

him to have a few days extension beyond

September 2 for filing it &@lso, The

Chief Deputy Clerk, Mr, Ganucheau, then

Stated that, if the undersigned would

mail hima letter requesting extension

to and including September 8, extension

would be &ranted,

xxii

The undersigned promptly did that, The

Chief Deputy Clérk did cause to be

mailed to this attorney on September 2,

1969, a Memorandum by him, dated Septem-

ber 2, 1969, granting an extension to and

including September 8, 1969, for filing

reproduced copies of the record (appendix)

and appellant's brief, There was stamped :

on the Memorandum "No further extension

Should be requested", This 6-day exten-

appellant, Ten offset printed copies of the

appendix, exclusive of the exhibits, each

said copy consisting of three bound volumes,

totalling about 750 ‘pages, and four re-

6-day extension sranted by the Chief Deputy

Clerk for filing the appendix, Two copies

of the &ppendix, exclusive of the exhibits,

only one copy required to be sent,,

September 8, 1969, for filing appellant's

brief, this attorney for the appellant

telephoned the Clerk's Office, requested

to talk with the Chief Deputy Clerk, and

upon being informed he was not available

but the Senior Clerk was, talked with

Mr, Richard Windhorst, the Senior Clerk,

The Undersigned indicated to Mr, Wind-

xxiii

horst then the need of appellant for a 3

or 4-day extension from Monday, September

8, 1969, for filing appellant's brief and .

referred to the said Statement, "No further

extension should be requested", that was

Stamped on the said Memorandum sranting

the 6-day extension from September 2, 1969,

which was the only extension for filing

appellant's brief in this appeal -the under-

Signed had ever requested previously, Mr,

Windhorst then said, in effect, that if

this attorney would mail to the Clerk's

The mailing of the original of the letter

to appellee's counsel was done promptly,

midnight of September 8, 1969, appellant's

brief in Shorter and not &S complete form

&@s he mailed re Air Mail, before midnight

of September 12, 1969, in the Atlanta Post

Office, addressed to the Chief Deputy Clerk,

In this connection, the following sentence

is quoted from Rule 25 (a), E.R: A, Py:

* % 4% Filing may be accomplished by mail

addressed to the Clerk, but filing shall

for filing, except that briefs and appen-

dices shall be deemed filed on the day of

Pa |

xxiv

mailing if the most expeditious form of

delivery by mail, excepting special de- |

livery, is used,"

4, On the morning of Tuesday, Septem-

ber 9, 1969, this attorney received a

in the Clerk's Office from appellee's

counsel, the call and telegram Opposing

extension for filing appellant's brief,

Mr, Windhorst also Said in the telephone

from September 8, 1969, he stated to

Mr, Windhorst would be needed for filing

' @ppellant's brief; and Mr. Windhorst also,

then indicated that, insofar &S the Clerk's

Office concerned, the -day extension reu

alleged grou of failure to prosecute it

timely,~ On Septémber 11, 1969, the under-~

Signed mailed to the Clerk's Office appe-

llant's reply to the motion to dismiss

and mailed copy to appellee's counsel,

XXV-

6. On September 11, 1969, this attor-

ney made inquiry by telephone to the Chief

- for muling by the Court on appellee's motion

to dismiss before mailing, Air Mail, appel- \

lant's brief, was told to mail the brief

and not wait for Such ruling before mailing

the brief, On or about September 15, 1969,

appellant's attorney received a Memorandum

from the Clerk's Office Providing that

&ppellant would have to and including Sep-

tember 18 (8), 1969, for filing reply to

appellee's motion to dismiss, Appellant's

reply to the motion to dismiss had already

been mailed to the Clerks' Office,: On

September 12, 1969, this attorney mailed

an amendment to @ppellant's motion for .the

4-day extension from September 8, 1969, to.

the Clerk's Office and copy to appellee's

counsel, the amendment striking paragraph

7 Of appellant's motion, which contained grounds

. therefor, and Substituting in lieu thereof

and therefor another paragraph 7, which

reads:

"te ee undersigned is mainly respon-

Sible for arranging the continued ur-

sently needed Stay of his 86-year old

father, a Widower, as a patient ina

one

bn J

~ to»

"In order to ca

for insuring n

causing his fa

matter nearby

financial inte

contests is no

that period of

much time from

rry out his res

eeded medical ec

rest,

t yet determine

time, in which

his law practi

became an accumulation of mat

of this year b

ecause of said

In recent weeks, he has been

heavy load of workin his pra

having time to

get enough res

he has not been able to take

ponsibility

ther has a. «

One of those

d. .During *

he lost

ce, there

t mailed, Air Mail, on

7. Said grounds in the motion, as

XXVii

amended, for the 4~day extension from ¢

September ‘8, 1969, show, in effect, that

under necessitous circumstances the come

pleting and mailing, Air Mail, of the ;

Stated offset printed copies of A pellant's

Brief that were mailed, Air Mail, on Sep-

tember'12, 1969, at the main Post Office

in Atlanta, Georgia, was practically im-

aaa

8, A Deputy Clerk of this Court in:

* formed appellant's attorney in a telephone

mailed, Air Mail, by the AUndersigned gt a

window of the m n Atlanta Post Office a

‘few minutes before lanier: of September: .

12, 1969, ‘and each postmarked "SEPT12 1969",

A letter of transmittal WaS enclosed-in the

cardboard box containing the Copies of th ap-

pendix, that was received in the Clerk's prtice

on September 2, 1969 timely, the box havi

been sent by Air Express; However, no letter

of transmittal was enclosed in either of'.them; -

two cardboard boxes, one containing 12;-Copies

°-

°°

ia ;

xxviii

transmittal of the copies. of that Brief was

ever sent, separately, to the Clerk's Office,

The undersigned had stated over telephone on

September 11, 1969 to the Chief Deputy Clerk

that he would mail, Air Mail, on September 12,

1969, the copies of Appellant;s Brief for

filing, -

9. It appears that, since the copies of

the Brief were not received in the Clerk's

Office until Monday, September 15, and neither

of the two boxes postmarked "SEPT12 1969" that

had contained the 25 copies of that Brief was

probably ever before any of the Judges on the

three-Judge panel which denied appellant's motion

for the 4-day extension and granted appellee's

motion to dismiss the appeal, the panel was

unaware the copies had been mailed, Air Mail, on

September 12, and that Septdmber 12, 1969, was,

in effect, the filing date, /instead of September

15, 1969, Air Mail being the most expeditious

method of mailing excepting Special Delivery,

‘A paragraph in the Order of the panel

filed October 1, 1969, refers to a motion of

appellant for time extension as one for ex-

tension to and including September 15, 1969,

and contains denial of such a motion, but re-

questwas made in the motion only for a 4day

extension from September 8, 1969, for filing

Appellant's Brief,

10, The original of notations and Post Mark

made and initialed by Mr, James F, Wright, Post

Office Clerk, who received the two boxes at a window

af the Federal Annex, the main Post Office in

Atlanta, Georgia, between 11:30 and 12:00 P.M,

on September 12, 1969, and a Signed statement

by Mr, Wright obtained from him, the original

' thereof, as to that mailing are attached to the

o -

—

PANE mT ee

xxix

10,

LO of this motion, and photocopies

of the said initialed notations and Signed

statement of Mr, Wright are attached to each

copy of the motion, and made parts hereof,

ll, There have been very jhheavy costs of

prosecution of this case in the United States

District Court in Tampa, Florida, and the

appeal in this Court, which among other things

entailed the taking of about 15 depositions in

Atlanta, Georgia the place of occurrance of the

injuries of the plaintiff-appellant, the making

of two or three trips by the plaintiff to Tampa,

the making of five or six trips of a few days

each by the undersigned to Tampa, the printing

of the very lengthy portions of the record

designated for inclusion in the appendix, con-

Sisting of about 750 pages selected by the under-

Signed, from a much longer record, and Appellant's

Brief,

12, The motions of the appellee, served between

July 2 and 6, 1969, to strike certain pleadings of -

the appellant in this Court, to dismiss the appeal,

and the motion to strike or dismiss were mainly

based upon erroneous assumption that the record on

appeal had been filed prior to June 17, 1969, but

&@ Memorandum from the Clerk's Office dated June 1L7,

1969, showed the record had been filed June 17,

1969, The undersigned did not receive the record

on appeal until June 18 or 19, 1969,

WHEREFORE, appellant, BETTY PITTMAN WARWICK,

rays that the Court reconsider her motion for

-day time extension for filing Appellant's. Brief,

the motion of the appellee, BARRY S, SEGAN, to -

dismiss the appeal, the two-paragraph Order of

the Court filed October 1, 1969, denying the

motion of the appellant for time extension and

granting the motion of appellee to dismiss the

‘

an 5

———— = = —

Se ee ee

. A

XXX

appeal, and that the Court reinstate the

appeal,

Respectfully submitted,

_/S/ Wyman C, Lowe

WYMAN C, LOWE |

: ‘Attorney for Appellant

701 Carnegie Building’ 3 eases.

Atlanta, Georgia 30303

CeRTIFICATE OF SHRVICE

[ hereby certify that I have on this

date, early in the morning, October 15,

1969, served a copy of the foregoing

motion and the two exhibits attachéd

beneath the motion upon counsel of re-

cord for said appellee by mailing in

the U, S, Mails, postage prepaid, a

copy addressed to Ramseur, Bradhan,

Lyle, Skipper & Cramer, 699 First Avenue

North, St, Petersburg, Florida,

/S/ Wyman C, Lowe

WYMAN C, LOW@

Attorney

oe,

Bes ty al iy

BETES erg de OL

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xxx1

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U.S, COURT OF APPEALS

P.IL E.D

NOV 3 1969

at EDWARD W. WADSWORTH

CLERK

APPELLANT'S AMENDMENT OF HER MOTION FOR

RECONSIDERATION AS TO THE ORDER FILED :

ON OCTOBER 1, 1969, AND FOR REINSTATE- ‘

MENT OF THE APPEAL —

Now comes BETTY PITTMAN WARWICK, Ap-

pellant in the above styled appeal, and

amends as follows her motion for recon-

Sideration as ti the Order filed October

‘1, 1969, denying her motion for time ex-

tension for filing Appellant's Brief,

granting the motion of the Appellee to

. dismiss the appeal, and for reinstate-"

ment of the appeal:

1, By adding to the motion between

Paragraphs 6 and 7 the following as Para-

graph 6-A: .

"6-A, In the preceding Paragraph 6 ot

this motion, Appellant quotes Para-

.Sraph 7 of her motion, as amended, for

a 4-day time extension from September

8, 1969, for filing Appellant's Brief,

that Paragraph 7 containing her grounds

for the motion, Part of the said

grounds are quoted again below:

‘In recent weeks, he had been under

a@ heavy load of work in his practice,

barely having time to get enough rest,

such that he has not been ablé to take

Document No, 17

‘eo

ead

xxxiv

| &s

time to get very urgently needed

dental care and work, the lack of

which is adversely affecting his

general health,’

"In connection with the said part of

Appellant's grounds in her motion for

the 4-day extension and in support of

her motion for reconsideration as to

the Order filed October 1, 1969, and

for reinstatement of the appeal, a Signed

statememt of a dentist with resveét to

Appellant's attorney, Wyman C, Lowe, is

attached hereto and made part hereof,

original being attached to this 2 vege

original,

/S/ Wyman C, Lowe

wes WYMAN C, LOWE

Attorney for Appellant

701 Carnegie Building

Atlante, Georgia 30303

CERTIFICATE OF SERVICES

I hereby certify that I have on this date,

October 30, 1969, served a copy of the

foregoing amendment and exhibit atteched

beneath upon counsel of record for said

Appellee by mailing in the U, S, Meils,

postage prepaid, a copy, addressed to

Ramseur, Bradham, Lyle, Skipper and

Cramer, 699 First Avenue North, St,

Petersburg, Florida,

/S/ Wyman C, Lowe

WYMAN C, LOWE

Attorney

“te

€ Shoe Sees Seine A aia a tee ee ene ae cai

xXXV

PETER A, JENSEN, ., D. D. S.

2706 Clairmont Rad, N, &,

Atlanta 6, Georgie

ME 6-6066

October 30, 1969

TO WHOM IT MAY CONCERN:

Mr, Wyman C, Lowe was in mv office at

4:00 P,M,, July 28, 1969, He had a badly

broken down right molar which was an

abutment to a four unit bridge, I re-

commended extraction of these teeth and

other teeth in the lower arch, He had a

great deal of infection around these teeth

which-held the fixed bridgework in Sri

Mr, Lowe was back in my office Oct,

30, 1969 at 4:00 P.M, At this time I

examined him again and found that the

bridge on the righ’ side had broken out

and he had lost a front tooth due to a

periodontal condit on,

His general dental condition has ad-

versely affected his health, at his age

of 64 years,

He was presented this afternoon with

a treatment vlan which he said he in-

tends to follow throurh with,

‘ S/ Peter A, Jensen, Jr,

PETER A, JENSEN, JR., D.D.S, ;

» ————

ere $4 f

jy eg eek

yg Ng upt OF \PPEALs

PTs

ey,

NOV 11 1969

.? EDWARD W., WADSWORTH

| | CLERK

IN THE UNITED STATES cCouURT OF APPEALS

: FOR THE FIFTH CIRCUIT

No, 27903

“BETTY PITTMAN WARWICK,

Plaintiff-Appellant,

versus

BARRY S, SEGAN, $

Defendant~/ ppellee,

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF FLORIDA

Before, THORNBERRY, MORGAN ana CARSWELL,

. Circuit Judges,

BY THE COURT:

IT IS ORDERED that appellant's motion

for reconsideration of this Court's order

denying appellant's motion for a four day

extension of time for the filing of her

brief and granting appellee's motion to

dismiss the appeal is hereby DENIED,

motion for reinstatement of this appeal

is hereby DENIED,

' Document No, 18 g

IT IS FURTHER ORDERED that appellant's

NUS

«23s

(g) BASIS FOR FEDERAL/JURISDICTION

IN THe COURT OF THE FIRST INSTANC#,

The basis for federal jurisdiction in

this case in the court of the first in-

stance, the United States District Court,

Middle District of Florida, Tampa Divi-

Sion, in which the complaint was filed

and the case tried before a jury, was

complete diversity of citizenship of the

plaintiff and defendant and the fact the

amount in controversy was $100,000,00;

more than $10,000.00, exclusive of court

costs,

(h) ARGUMENT

A motion of the Appellee, Harry S,

Segan, for dismissal of the appeal on

grounds of failure of Appellant to file

her brief by September 8, 1969, was not

filed prior to Sevtember 12, 1969, and

was filed on that dete, which was the

date Appellant was entitled, under ap-

plicable provisions in Rule 25 (a),

Federal Rules of Appellate Frocedure,

for her Brief to be deemed filed, That

fppellant, Betty Pittman Warwick, was

entitled to the filing of her 2rief as

of September 12, 1969, has been esta-

blished hereinbefore in the "Statement

of the Case", including the "Supplement"

thereto, which contains copies of various

relevant documents certified in the Trans-

erint of the Record,

Since the motion for such dismissal

on said grournc was not made before the

date of filin: hat Rule 25 (a), PLR:

A, P,, makes it mandatory for Appellant's

Brief to be de aed filed, the motion to

~ 2h

dismiss the appeal should not have been

granted, according to the following de-

cisions: |

any attempt was made to take advantage

Of itkkx 1

Bingham y, Morris, 3L Ed 28]

Where the record on appeal was duly

received and filed wit the Clerk

appearance had not, through inadver-

tence, been complied with; and

afterwards, on a compliance with such

rules, the case was docketed and ap -

pearance entered a subsequent mo-

tion to dismiss for not docketing

the case in time will not be granted.

Richardson v. Green, 130 US 104,

32 L ed 872. |

saa a

_-25=

Appellant filed timely on September

2, 1969, the very lengthy Appendix, con-

Sisting of three offset printed volumes,

having total of about 750 pages, and a

volume containing reproductions of very

many exhibits, The date she was entitled

by said Rule 25 (a), F. R, A. P., for her

Brief to be deemed filed was only 4 days

after it was due to be filed, Such file

ing was at most a non-jurisdictional de-

fect in the prosecution of the appeal

and not sufficient to warrant dismissal,

according to the following decisions, the

first which was a 1956 decision by the

U.S, Court of Appeals, 5th Circuit:

Late filing of record and brief

on appeal wes at most a non-jur-

isdictional defect in the prose-

cution of the appeal and was not

sufficient to warrant dismissal,

Phillips v, Employers' Mut. Lia-

bility Ins, Co, of Wis,, i a a

2d 79

Appeal in an important case would °

not be dismissed because of fail-

ure of appellant's attorney to

file. brief on their behalf within

time required, International

Broth, of Teamsters, etc,, of

America Vv, U, S.. 272.F. 20 11

Where final judgment wes enter-

ed for plaintiff -on March 30, 1940,

and at 2:05 P.M, on April 9, -de-

fendants filed notice of appeal,

together with cost bond on aDv=

peal, and defendants' transcript

of evidence and proceedings: at

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trial was filed in Court of’

Appeals on July 1, and their

statement of points on was

filed on July 2, appeal would

‘not be dismissed for feilure

to comply with rules concern-

ing time and place for filing

Statement of points relied on,

Since there was no failure by

defendants to take steps to

Secure the review of the jJudr-

ment within Federal Rules of

Civil Procedure which affected

validity of appeal, Fiske v,

Wallace, 115 F, éd 1003, certe-

lorari denied 62 S, Ct, 123,

two cases, 314 U,s, 663, 86 L,

“d, 531, rehearing denied 62

S. Ct, 174, two cases, 314 U,S,

710, 86 L, fd, 566, rehearing

denied 62 S, ct, 910, two cases,

315 U.S, 829, 86 L, td, 1224,

An appeal from an interlocutory order

would not be dismissed On the appellee's

motion because appellant docketed the re-

cord one day after the time permitted’ by

@ valid extension since the deley was de

minimis,

Pacific Coast Na@arine Firemen etc, Assoc

Vv, Coastwide Line, 171 F, 2d 254,

In this connection, the following ad-

ditional citation is miven:

"ett and decisions on the merits

Should not be avoided on basis

of ‘mere technicalities’,

Forman v, Davis, 371. U.S, 178,

~2R-

181, 83 S, Ct, 227, 230, OL.

Bd, 2d 222, 236. é

Appeals should be decided if at

@ll possible on the merits,

Morrison v, Texaco Co, 289 F,

2d 382,

' Appellee's reply in opposition to the

motion for reconsideration and rein-

Statement was filed five days later than

Rule 27 (a), Federal Rule of Appellate

Procedure, authorizes the filing of a ~-

response in opposition to a motion. By

way of comparison, ft is stated that the

date Appellant's Brief deemed filed

under provision in Rule 25 cad, 7, t.

A. P., was four days after the date it

The certificate of service at end of

Appellant's motion for reconsideration

and reinstatement shows copy thereof

w served upon Appellee's counsel on

Octdber 15, 1969 (Supp., Pp. xxx), and an

entry in "Filings-Proceedings" (Supp. p.

ii) shows the motion was filed October

16, 1969. An entry on the same page of

"Filings-Proceedings" shows the Appel-

lee's reply to that motion was-not filed

until October 27, 1969, 12 days after

the date of serving of a copy of the

motion. The last sentence in Rule 27

(a2, 3; 8. A. P., reads:

“Any party may file a response

in opposition to a motion other

than one for a Procedural order

(for which see subdivision (b)

- within 7 days after service of

eh nett tre Sting enema Pe ER <

-28-

“the motion, but motions authorized by

Rules 8, 9, 18 and 41 may be acted

upon after reasonable(notice, and the -

court may shorten or extend the time

for responding to any motion."

With respect to the statutory time of

90 days from date of entry of a judgment

or order of a final nature in an United

States Court of Appeals for filing in

the Supreme Court of the United States a

petition for certiorari for review, it

is stated thst the main Order a to.

which petitioner seeks review whe filed

On October 1, 1969, and that there has been

tolling of time from October 1, 11969,

to and including’ November» 11, 1969, the

date of filing of: the Order“denying

Appellant's motion for reconsideration

and reinstatement. In support of this

contention, the following citations of

decisions are given:

Consideration and determination by

judge of petition to vacate order

of dismissal and reinstate action

operated to extend time for appeal

from order sought to be vecated

and therefore where appeal from

such order was filed March 15

end order denying petition to va-

cate was entered on February 26,

appeal from order sought to be

vacated was timely, though filed -

more than 150 days after such

order had been entered.

Salmon v. City of Stuart, Fla., 194 F, .

2d 1004,

The running of time for taking an

appeal from a judgment in a civil

-~29-

action is terminated by. the mak-

ing of a timely motion for new trial

‘and does not commence to run again

_ until the motion has been denied.

Kelly v. Pennsylvania R. Co., 228 F.2d

2/, certiorari denied 76 S. Ct. 782,

Jol U..8,. 925, 100 L. bd. 1455.

Where district court entertained

defendant's motion for rehearing

of her motion: to set aside judgment

and for a new trial, original

order refusing to set aside judg-

ment did not become appealable

until motion for hearing was over-

ruled. ; ,

Hicklin v. Edwards, 222 F.2d es

Where judgment was rendered on

April 27 and motion for new trial

was Overruled June 10, notice of

appeal was taken from judgment

entered on June 10 was sufficient’

to perfect an appeal from judgment

of April 27, since that was the

only appealable judgment entered

in the cause. at

Wilson v. Southern Ry. Co., 147 F.2d 165.

Motion for reconsideration of

order dismissing complaint terminated

running of time in which to appeal

from the order, but the time

within which to appeal from the

order commenced to run from denial

of the motion.

Yates v. Behrend, 280 F.2d 64, 108 U. §.

App. D. C. 56. t

~ I<

Generally, where a tolling petition

is seasonably made and entertained,

the time for appeal does not begin

to run until after disposition of

the motion. | ' -:

Leishman v. Associated Wholesale Electric

Co., 63 S. Ct. 543, 318 UL S. 203, 87 L.

Ed. 714, rehearing denied 63 S. Ct. 758,

318 U. S. 800, 87. ED. 1163, ° ar:

"If the petitions are to be treated

as petitions for rehearing as the

petitions were in Bowman v. Loprena,

wae es 5, 202. GL 8; Ce, fue eo bs

ED.177, where after a motion for

rehearing had been considered and

denied, the petitioner appealed

from the judgment which he was

seeking to review, we think it

plain that the consideration and

determination of the petitions on

the merits by the judge operated

to extend the time for appeal from

those judgments." ;

Cromelin v. Markwalter, U. 3. Court of

Appeals, Fifth Circuit, 181 F.2d 949,

Part of amended paragraph 7 of

Appellant's motion for said 4-day time

extension for filing her Brief is ;

quoted next, said paragraph appearing

as Document 12 on pages ix and x of | x

said Supplement, that is at the end of ;

her "Statement of the Case" herein:

"7. The undersigned is mainly

responsible for arranging the

continued urgently needed stay

of his 86-year old father, a

widower, as a patient in a medical-

care nursing home, located about

. and about 15 miles from where his

.-31-

'"l25 miles from Atlanta, Georgia

where the undersigned has his office

father had beén living, and for

insuring that his father has

‘special medical -care when needed over

and above that provided by said

home. It ‘was necessary for the

undersigned to assume financial

responsibility for keeping his

father in that nursing home for

- Most of the time he has been a

patient there. In order to carry

out his responsibility for insuring

needed medical care and causing

his father's bills at that home to

be paid, part of which paid by the

undersigned, it has been necessary

for the undersigned to make very

frequent trips to the nursing home

and to spend considerable time on

the trips on a matter nearby in

which his father has a financial

interest.

"During part of last year, the

undersigned was a congressional

candidate and for several months vem

thereatter was contestant in elec- |

tion contests as to the outcome of

that race. One of those contests

is not yet determined. During that

period of time, in which he lost

much time from his law practice,

there became an accumulation of

matters of an emergent nature in

his practice. It became necessary

for him to obtain leave of absence |

from a Court in Atlanta part of y

this year because of said situation.

In recent weeks, he has been under |

a heavy load of work in his prac- |

tice, barely having time to get |

ee ee ie li

~32<

urgently needed dental Care and

work, the lack of which is

adversely affecting his general

health,"

The undersigned ettorney's father died

in said nursing home on November 5, 1969,

which was in the next month after the

needed dental cere, the lack of which

was adversely affecting his health, the

following sentence is quoted from a

Bemor andum regarding the undersigned

"His general dental condition has

adversely affected his health, at

his age of 64 years,"

The grounds for the 4-day extension

requested in the motion, as amended,

show necessitous circumstances that

warranted granting of the very short

extension.

The body of the letter, dated January

23, 1970, to the undersigned from the

Chief Deputy Clerk of the Court of

—~— oe ee

Appeals reads:

"Complying with your request by

letter dated January 15, this

letter will certify thet your

brief in the above case was

received and filed in this office

on Monday, September 15, 1969;

thet under our practice al] wrappings,

envelopes, boxes, packages, etc.

are destroyed immediately when

received and there is no record

of the postmark date of transmittal

of the brief available in our file,

nor does our file contain a covering |

letter of transmission of the brief,

Paragraphs 8, 9, and 10 of Appellant's

motion for reconsideration and reinstate-

‘ment, the photographic copies of the two

exhibits thereto (Supp. xxvii-xxix,,

copy of which is on page ii-a of said.

Supplement, conclusively show when Rule

22 46)7) Pi Be P., is considered in

conjunction with them, that Appellant's

Brief should have been deemed filed on

September 12, 1969, but that the said

three-Judge panel Probably did not

‘receive notice from the Clerk's office

that the two ‘boxes containing the copies

of the Brief bore Atlanta’ postmarks of

September 12, 1969, and stampings of

"Air Mail" and*considered the filing date

to have been September 15, 1969 instead.

Moreover, it is respectfully stated

that the fact the panel rendered an

‘

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‘

——— aR LTS STI psec Sm hatte Sa a mma

= pi 0S PRG EROS ai a ~ a soca wether reeiemhaatianee _= —

-34-

September 15, 1969". for filing her brief,

when the only motion of the Appellant

for time’ extension for filing her Brief

on file was the one in which she moved.

for time extension for that purpose "to |

and including September 12, 1969" raises

has read the motion or had it before

them at time of making that ruling.

(i) No opinion was delivered upon the '

rendering of each of said two Orders

sought to be reviewed. A copy of the

said Order that was entered on October 1,

1969, and a copy of the said other Order

that was entered on November 11, 1969,.

appear -on pages lxiii and the last page,

respectively, of the "Supplement to the

Statement of the Case,"' which follows

next after the "Statement of the Case,"

the pages of that "Supplement" being

numbered with small Roman numerals to

distinguish them from the rest of the

petition.

THEREFORE, it is respectfully sub-

mitted that the petition for writ of

of the Court of Appeals should be granted,

701 Garnegie Building

Atlanta, Georgia 303 3

Attorney for Petitioner

wi vies negli peentnarbeneatagarme oe

CERTIFICATE OR PROOF OF SERVICE

. I hereby certify that I, a Member of

the Bar of this Court, ‘on this date,

- January 26, 1970, served a copy of the

foregoing and within petition for certio-

rari upon said Respondent in Certiorari

Barry S. Segan, by depositing in the

U. S. Mails, one copy of it in envelope

sufficient postage being attached to carry

the envelope to its destination, address-

ed to Ramseur, Bradham, Lyle, Skipper,

and Cramer, 699 First Avenue North,

St. Petersburg, said law firm having

been counsel of record for Barry S.

Segan in this case in the lower courts.

areata rnc

Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.