# Petition for Writ of Certiorari — Warwick v. Segan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1280%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 397 U.S. 935 ## Text LIBRARY Soe 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 ee | 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 *” = - A \ z . oe 2s ° ~ ° 2 e . . ® ' : ; 7 E « ae . LS . - 7 2 “: ‘ . , ‘ ver . 5 B +8 a : . 6 fy ; F se . : ‘ : 6 ‘ ‘ - ° : « ~ . A Fy z : : sh F ‘ Z : z . 5 z : . ° . Z = - : = . : s q ; ° ° « © P ; : ; x ; is RE ° es . : + . y : . te x ‘ : 4 & 2 Sg ’ ‘ ‘ ; 4 F ° ; we . . i i he eC. °* - vf 5; Py s Sarna ’ ot Men, F ’ A tm e . ! ¢ 7 By. : . : ‘ e ‘ : ' ¢ s : : at = ‘ P * Fp ‘ ‘ e . * te ; : - = 7 | a ¢ — Te ae STO aa eR Re 5 ES Pe : ? = mF Sa a Peers. oe Po % 2 q 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, | ¢ ‘ 2 ; s -PwlT’TON FOR CERTIORART. WYMAN Cy LOWS 3 701 Carnerie Building Atlanta, Georzia 30303 Attorney for Petitioner st 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 s w/ 0 oe 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. 56 26 25, 2-A 24 28 29 29 /~ ra - > vw o 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, A bbs em tot . ? . 4 . > ’ ; ; : : : J , ) 4 : / £ i SAY «Bs ag E \ 2 \, es v (c) STATEMENT oF THE CASE ‘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- : \ 4 we! . e . 2 : ; . ° Sa i ‘ i x ° Ff D ° - . 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A . . . ‘ a ‘ ’ - . . t . « . . a0 . . > e . » 7 2 a ad ad . .* > . . . é 7 . . ‘ ; be . -8- 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, «Qe 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 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; ay ar a ~ Py 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 Y / 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 ed 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, ‘ « a ¢ i . 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 el _— ae = oo 10727769 11/3/69 Seid: o_o i ee = = = \o ice: coe dismiss appeal; further. DENYING / appellant's motion for rein- | “statement of appeal(HT LRM GHC), 6; Vv oO 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 Z sesceeccs C8 Ric sc eceeccecs * 111i U,S, Court of Appeals FIL bd —— P F ? ° = 4 ‘ . e ¥ * Fk Fi ‘ ¢ , ° s ° . - ° > - é . i . « t ’ : e * . es P . ‘ . f° * ® £ nm e =. ; ’ * ’ ? * e . : P ee 1 ¢ s * ad ' 4 - . : ~ : i =e « ’ e Vv 2. 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 vi 3 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 6 Ss ¥ 4, 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 Na 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 a 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 we 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 3. 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 ‘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 QQ IT IS FURTHER ORDERED that appellant's eC 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 { * . a ‘ e . °. on » : ~ F \ , ry . * o . . . . . . . : -- . \ ’ .» . oe 2 -~ ’ ° 3 re . . 4 . > ~ . “— / ~26= 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 was due to be filed. © 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 made by Dr. Jensen, a dentist, photo- © "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 s Appeals reads: 3 "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 ‘ ‘ e . . i * ‘ . : ‘ t . * . . - ‘ . , . e ‘ ——— 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 ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1280%3A1. Public record. Not legal advice.