Petition for Writ of Certiorari — Edwards v. Velvac, Inc. (No. 1005)

MAY 15 1957

In THE

Supreme Court of the United States

October Term, 1956

No. 1005

Lronarp C. Epwarps,

Petitioner

v.

Vexvac, Inc. and WaLLErR Carson

Respor:dents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

J. Preston SweckKer

Counsel for Petitioner

Of Counsel:

Wiu.iaM L. Marais

Swecker & Marais

WILSON - EPES PRINTING Co. - RE 7.6002 - WASHINGTON 1, D. C.

PIE YP TNE AE ETS NON * way vem

INDEX

Opinions Below

Jurisdiction

Questions Presented

Rules and Statutes Involved

Statement of the Case

Argument

Conclusion

Appendix

Opinion of District Court, dated October 30, 1956

Notice of Appeal to Court of Appeals

Motion to Dismiss Appeal

Decision of Court of Appeals dated February 25,

1957

Motion to Reinstate Appeal

Decision of Court of Appeals dated March 27,

1957

Index of Decisions

Ackermann v. United States, 340 U.S. 1938, 197...........

Callaway v. Wolcott, 90 Cal. App. 753, 266 Pac, 574....

Commercial Credit Corp. v. United States (C.A. 8),

175 F. (2d) 905

Hill v. Hawes, 320 U.S. 520

Klapprott v. United States, 335 U.S. 601

Lewith v. Remke, 217 Cal. 563, 20 Pac. (2d) 687..........

Moore’s Federal Practice (2d Ed.), Vol. 7, page 14...

Perrin et al v. Aluminum Co. of America (C.A. 9),

197 F. (2d) 254

Stenzel v. Kronick, 201 Cal, 26, 255 Pac. 199_...............

-Tozer v. Charles A. Krause Milling Co. (C.A. 3),

189 F. (2d) 242 at

DARK PAGE BLEED TrRy

ae

INDEX (Continued )

PAGE

United States y, Wissahickon Tool Works, Ine. (C.A,

ET ici 5

Vieino y. Amador, 71 Cal. App. 604, 236 Pac. 369... 6

NOS PL

PEE LIE DRE LEI TRS NEF EROS .

Me toe: now

In THE

Supreme Court of the United States

October Term, 1956

No.

Leonarp C. Epwarps,

Petitioner

v.

Vexvac, Inc. and WaLLER Carson

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Leonard C. Edwards, prays that a writ of

certiorari issue to review the judgments of the United

States Court of Appeals for the Seventh Circuit, entered

on February 25, 1957 and on March 27, 1957, in Appeal

No. 11960, in said Court.

OPINIONS BELOW

Neither the Opinion of the District Court nor the

Judgments of the Court of Appeals have been reported.

They have been included in the record certified to this

Court and are included in the Appendix hereto, that of

the District Court at page 9, and of the Court of Ap-

peals at pages 17 and 18.

RR eRe OAR Se NRRL ARERR ee

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> DARK PAGE BLEED Typo),

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JURISDICTION

The Judgment of the District Court was entered on

March 12, 1956. A timely appeal was filed therefrom to

the Court of Appeals, which appeal, by Order dated Feb-

ruary 25, 1957, was dismissed. A timely Motion was filed

thereafter for reinstatement of the appeal, or for that |

Court to state grounds for dismissal, which Motion was

denied on March 27, 1957.

The jurisdiction of this Court is invoked under US.

Code, Title 28, Section 1254(1), and under Rule 19(1)(b)

of the Rules of the Supreme Court.

QUESTIONS PRESENTED

; 1. Is a denial by the District Court of a motion under

‘ Rule 60(b), F.R.C.P., to vacate a final judgment, based

on (1) inadvertence or excusable neglect, appealable, and

should such decision be reviewed by the Court of Appeals?

2. Was the Court of Appeals justified in dismissing

timely appeal from decision of District Court denying

motion under Rule 60(b)(1) to vacate final judgment,

which motion was filed within period provided by Rule,

and in refusing to specify reasons for decision?

3. Is relief afforded under Rule 60(b)(1) where the

mistake, inadvertence, surprise or excusable neglect oc-

curred after the final judgment was entered, in perfect-

ing appeal?

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RULES AND STATUTES INVOLVED

Federal Rules of Civil Procedure:

“RULE 60. RELIEF FROM JUDGMENT OR

ORDER

“(b) Mistakes; Tnadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, ete. On Motion

and upon such terms as are just, the court may re-

| a PER RE SESE RN i Say ea aie» ee Ee eae

3

lieve a party or his legal representative from a final

judgment, order, or proceeding for the following rea-

sons: (1) mistake, inadvertence, surprise, or excusable

neglect; ....”

U.S. Code, Title 28, Section 1291:

“$1291. Final Decisions of district courts

“The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts

of the United States, the District Court for the Ter-

ritory of Alaska, the United States District Court

for the District of the Canal Zone, and the District

Court of the Virgin Islands, except where a direct

review may be had in the Supreme Court.”

California Code of Civil Procedure, Deering, 1937:

“Relief from judgment taken by mistake, etc. The

court may, upon such terms as may be just, relieve

a party or his legal representative from a judgment,

order, or other proceeding taken against him through

his mistake, inadvertence, surprise or excusable

neglect. Application for such relief must be accom-

panied by a copy of the answer or other pleading

proposed to be filed therein, otherwise the application

shall not be granted, and must be made within a

reasonable time, in no case exceeding six months,

after such judgment, order or proceeding was taken.”

.STATEMENT OF THE CASE

This action was filed in the District Court for the

Eastern District of Wisconsin, for infringement by the

Respondents of a United States patent issued to the Peti-

tioner. After trial, the District Court, on March 12, 1956,

entered an Order and Judgment dismissing the Complaint

herein. A Notice of Appeal to the Court of Appeals for

the Seventh Circuit was filed on April 12, 1956. On

Motion made in the Court of Appeals, that Court entered

an Order on August 14, 1956, dismissing the appeal as

not timely filed.

a

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On August 23, 1956, the Petitioner filed a Motion

the District Court to vacate, under Rule 60 of the Fed.

eral Rules of Civil Procedure, amend and reinstate the

District Court’s Final Order and Opinion. On October 30,

1956, the District Court entered an Order denying that

Motion (Appendix, infra, page 9).

The Motion had been predicated on both Sections (a)

and (b) of Rule 60, asking a clarification of the opinion

under Section (a) and to be relieved from the Judgment

73 under Section (b). Only Section (b) was involved in the

appeal to the Court of Appeals and it is only that por-

tion of the Motion which is material here.

Accompanying the Motion, affidavits (Appendix, infra,

pages 19 and 20) were filed in the District Court, estab-

lishing that the trial attorney had prepared a timely No-

tice of Appeal from the Judgment of March 12, 1956, which

was transmitted to the associate attorney in Milwaukee for

service and filing, but at the time that Notice reached the

office of the Milwaukee attorney, within the limit of time

for the filing of the same, he was then engaged in the

trial of another case, so that the Notice of Appeal did

not come to his personal attention until after the close

of business on the last day for filing the same, and he

failed to file the Notice until the following day, one day

late.

A timely Notice of Appeal (Appendix, infra, page 16)

from the decision of the District Court denying the Mo-

tion to Vacate, to the Court of Appeals for the Seventh

Cireuit. This appeal was dismissed by the Court of

Appeals (Appendix, infra, page 17).

The Petitioner filed a Motion (Appendix, infra, page

18) to reinstate that appeal or to state the grounds for

dismissal, which Motion was denied without explanation

(Appendix, infra, page 18).

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ELENA TILLER IC ETN RHA aL EF LORRI —

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ARGUMENT

The Decision of the District Court of October 30, 1956,

denied the Motion to Vacate the Judgment of March 12,

1956, upon an interpretation of Rule 60(b)(1), which ap-

pears to be in conflict with all applicable decisions and

with the plain import and meaning of the Rule.

It is well established that the Decision of a District

Court on a Motion to Vacate a Judgment under Rule

60(b) is a final decision under Section 1291 of U.S. Code,

Title 28. Under that provision of the Statute, the Court

of Appeals had jurisdiction of the appeal, timely filed,

from the decision of the District Court on the Motion un-

der Rule 60(b), dated October 30, 1956, This Court has

heretofore recognized that such decisions are appealable

and subject to review on appeal:

Ackermann v. United States, 340 U.S. 193

Klapprott v. United States, 335 U.S. 601

Likewise, other Courts of Appeals have reviewed, as

final decisions, orders granting or denying a motion un-

der Rule 60(b):

United States v. Wissahickon Tool Works, Inc.

(C.A. 2), 200 F. (2d) 936

Tozer v. Charles A. Krause Milling Co., (C.A.3),

189 F. (2d) 242

Commercial Credit Corp. v. United States (C.A.

8), 175 F. (2d) 905

Perrin et al v. Aluminum Co. of America,

(C.A. 9), 197 F. (2d) 254

Because the Court of Appeals failed and refused to

state any reasons for dismissal of the appeal, it is not

definitely known on what basis this appeal was dis-

missed, but it is clear from all authorities that the mat-

ter was appealable and Petitioner should have had an

opportunity for review by the Court of Appeals.

Such action by the Court of Appeals appears to bring

OIC RIO ILE BER TREE I OE NT GS ST ELLIE, SII PG A

6

this case within the provisions of Rule 19(1)(b) of the

Rules of the Supreme Court:

“(b) Where a court of appeals .. . has decided a

federal question in a way in conflict with applicable

decisions of this court; or has so far departed from

the accepted and usual course of judicial proceedings,

- as to call for an exercise of this court’s power

of supervision.”

This Court has heretofore held that where there has

been delay in the filing of the appeal due to neglect, the

judgment should be vacated and reinstated so as to revive

the right of appeal. Hill y. Hawes, 320 U.S. 520. That

case involved neglect on the part of the Clerk in failing

to notify the attorney of the entry of judgment, and it

was not excusable neglect of the parties, but the principle

of thus vacating and reinstating the appeal for excusable

neglect is thus established.

The precise issue raised by the decision of the Dis-

trict Court with respect to the interpretation of Rule

60(b)(1) has not previously been determined by any Fed-

eral Court in reported cases. However, substantially the

identical language, as appears in the Rule, was used in

the California Statute, Section 473. The California

Courts have uniformly held that such language is appli-

cable to inadvertence or excusable neglect in perfecting

appeals. Callaway v. Wolcott, 90 Cal. App. 753, 266 Pac.

574; Stenzel v. Kronick, 201 Cal. 26, 255 Pace. 199; Vicino

v. Amador, 71 Cal. App. 604, 236 Pac. 369; Lewith v.

Remke, 217 Cal. 563, 20 Pac. (2d) 687).

Inasmuch as Rule 60(b), especially subdivision (1)

thereof, was based on Section 473 of the California Code

of Civil Procedure (Moore’s Federal Practice, Second

Edition, Vol. 7, p. 14), the California decisions interpret-

ing the similar language of that Statute may be referred

to for a proper interpretation of the language of the

Federal Rule adopted in conformity thereto.

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Therefore, it appears that the District Court has com-

mitted an egregious error in interpreting Rule 60(b),

that the matter is fundamental and apparently of first

impression in this Court, and should be determined.

In any event, the Court of Appeals was in error in

dismissing the appeal because the matter was properly

appealable under the Statute, since the Decision of the

District Court was a Final Decision.

The Motion to Dismiss had raised the issue of timeli-

ness of the Motion under Rule 60(b), but inasmuch as

the record shows that the Motion was filed on August 23,

1956, to vacate a Final Judgment entered March 12, 1956,

it was well within the one year limitation applicable to

motions under Rule 60(b). Ackermann v. United States,

340 U.S. 193, 197.

The only other matter raised by the Motion to Dismiss

in the Court of Appeals was that the Court of Appeals

had already adjudicated the Petitioner’s rights by dis-

missing the previous appeal as not timely filed. The dis-

missal of the previous appeal was on the ground that the

Court of Appeals did not have jurisdiction, and without

jurisdiction the matter was not before the Court of Ap-

peals for determination of the merits of the appeal. Con-

sequently, the Court of Appeals could not and did not

adjudicate the rights of the Petitioner with respect to

the Motion under Rule 60(b).

Petitioner’s rights have suffered greviously in this

matter. Through inadvertence or excusable neglect of

his counsel, he was denied review of the decision of the

District Court on his cause of action. When he petitioned

under the Rule to correct that error, his petition was

denied, on a question of law. The Court of Appeals has

refused to review that decision. It is submitted that

such action was without justification.

Under the circumstances here involved, it is respect-

fully submitted that in all fairness to the Petitioner, the

Soest

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Bee + a . i ARIE PRT EE) PSO LOS Ge REP

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Court of Appeals should have, at least, stated its reasons

for dismissing the appeal, not only as an aid to the

Petitioner, but for the benefit of this Court in determin.

ing the present question, Consequently, the provision of

Rule 19(1)(b) of this Court would indicate that the Court

would be justified in exercising its power of supervision

in the interest of accomplishing justice to the Petitioner

and in affording Petitioner an opportunity to present and

to have determined by the Appellate Court the question

of compliance with a reasonable interpretation of Rule

60(b).

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CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

J. Preston Swecker

Counsel for Petitioner

LASER thon SB) Willa ale :

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Of Counsel:

WuuiamM L. Martuis

Swecker & Maruis

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APPENDIX

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

Civil Action No. 5764

LEONARD C. EDWARDS,

d/b/as Edwards Air Hose Bracket Company,

Sapulpa, Oklahoma,

Plaintiff,

v.

VELVAC, INC., and WALLER CARSON

3530 West Pierce Street

Milwaukee, Wisconsin

Defendants.

OPINION

Plaintiff has filed with this court a motion to vacate,

amend and reinstate its final order and opinion of March

12, 1956 (reported at 140 F. Supp. 936). He relies on

Federal Rules of Civil Procedure, Rule 60(a) relating to

Clerical Mistakes, and Rule 60(b) providing for relief

from Mistakes; Inadvertence; Excusable Neglect; Newly

Discovered Evidence; Fraud, ete., and asks that the find-

ings of fact contained in the opinion be amended in two

respects :

“1. State whether the ‘triangular bracket, old in the

art’, referred to on page 8 of the Court’s Opinion, is

the same as the hose bracket for tractors referred to

in the depositions described on page 4 of that same

Opinion; and

2. State whether the ‘aggregation’, referred to in

the last paragraph on 8 of the Court’s Opinion,

is the aggregation of the triangular bracket referred

to in the depositions, with a spring, which the Court

10

also found to be old in the art, according to the para-

graph next before the last on page 8 of the Court's

pinion.”

It should be emphasized at the outset that this is not

a case where the moving party has not had his day in

court. After issue was joined, the matter was fully pre-

tried, and after the provisions of the pre-trial order had

been complied with, the matter was called up for trial.

No suggestion has been made in this case that in the two

days afforded for trial, both sides did not have adequate

opportunity to present all their proofs. After all of the

evidence was in, substantial time was allowed for the

filing of briefs. After careful study of the transcript of

testimony and the briefs submitted, this court filed a

written twenty-page opinion which stands as the findings

of fact and conclusions of law in this case, and ordered

dismissal of the action on its merits. On the same day,

copies of the opinion and order of this court were mailed

to the attorneys for the parties pursuant to Rule 77(d)

of the Federal Rules of Civil Procedure. No issue is

raised that the notices so mailed were not promptly re-

ceived by the parties.

We believe it reasonable to infer both from his failure

to avail himself of his rights to move within the time

limits of appropriate rules for a new trial or amendment

of the judgment, and from his subsequent course of

action, that plaintiff determined to seek his further relief

in the Court of Appeals and not in the trial court.

In prosecuting his appeal, however, plaintiff-appellant

did not file his notice of appeal with the District Court

until April 12, 1956, which was one day late in comply-

ing with the provisions of Rule 73(a). In this respect

it should be observed that no application was made to

the trial court for enlargement of the thirty-day period

upon the sole ground allowable under that rule, towit,

upon a showing of “excusable neglect based on a failure

of a party to learn of the entry of the judgment.”

EE

11

On or about July 31, 1956, defendants filed a motion be-

fore the United States Court of Appeals for the Seventh

Cireuit to dismiss the appeal herein on the ground that

the notice of appeal was not filed within the time fixed

by Rule 73(a) of the Federal Rules of Civil Procedure,

that is, within thirty days from the entry of the final

order dismissing the plaintiff’s action. By answer of

August 9, 1956, with supporting affidavit of August 7,

1956, presented before that court, the plaintiff opposed

the defendants’ motion to dismiss the appeal. The sup-

porting affidavit set forth the reason for the late filing

of the notice of appeal, it being occasioned by the fact

that plaintiff’s Milwaukee counsel was engaged in a jury

trial on April 11, 1956, and plaintiff’s Washington D. C.

counsel’s air mail letter of April 9, 1956, with notice of

appeal enclosure did not come to his personal attention

until after the close of the working day on April 11, 1956.

The Milwaukee attorney thereupon filed it on the morning

of April 12, 1956, thirty-one days after the final order of

this court.

The United States Court of Appeals for the Seventh

Circuit in its Mandate dated August 14, 1956, dismissed

the plaintiff’s appeal as not timely made, it not appear-

ing that the plaintiff had applied for or obtained an ex-

tension of time.

Shortly thereafter, and on August 23, 1956, the plain-

tiff filed with this court his motion to vacate, amend and

reinstate, hereinbefore described.

The conclusion is inescapable that the plaintiff has now

turned to this District Court in a last desperate effort to

qualify his case for review before the Court of Appeals.

It is obviously his purpose and hope by means of the

motion before us to persuade this court to vacate the

order, make certain “clarifying amendments” to the find-

ings of fact contained in the opinion and then enter a

new order of dismissal. Since the net result of this whole

operation proposed by plaintiff is, admittedly and at best,

went aciig MEANS OEY EA ASR tit to tcsigs ats

B50 ERAN ia ain coon MAILE

12

a correction of alleged clerical errors, we can only con-

clude that he assumes that a new thirty-day period will

commence to run as of the date of the re-entered order

within which he may take his appeal.

We recognize that the plaintiff finds himself in a dif.

ficult and embarrasing plight, and while we would ordi-

narily be sympathetic, that plight does not justify a

warped and distorted application of Rules 60(a) or 60(b)

or any rule of the Federal Rules of Civil Procedure.

It is apparent from plaintiff's opening memorandum

filed shortly after the motion that he regards the mat-

ters, wherein he asks for amendment or clarification, as

clerical mistakes or errors arising from oversight or omis-

sion from which relief can be had under the following

rule, 60(a): ;

“(a) CLERICAL MISTAKES. Clerical mistakes in

judgments, orders or other parts of the record and

errors therein arising from oversight or omission may

be corrected by the court at any time of its own

initiative or on the motion of any party and after

such notice, if any, as the court orders. During the

pendency of an appeal, such mistakes may be so cor-

rected before the appeal is docketed in the appellate

court, and thereafter while the appeal is pending may

be so corrected with leave of the appellate court.”

It is diffieult to treat seriously plaintiff’s motion for

“clarifying amendments” to the findings of fact. Counsel

himself apparently recognizes the insubstantiality of his

position by having accorded it only the most passing ref-

erence in his memoranda and oral argument. The only

references made by him in his two memoranda are the

following:

First Memorandum (Concluding Paragraph) :

“While doing so, it is respectfully suggested that the

meaning of the Court’s Opinion would be clarified in

the two particulars mentioned on page 8 thereof, if

it be made clear that the triangular bracket, old in

PELIINGAOR DS HIRE TRING NOIR UR

13

the art, is the same hose bracket referred to in the

depositions, and also in the holding with respect to

‘aggregation’, that it is the hose bracket which the

Court found to be old according to the depositions,

combined with the spring which the Court also found

to be old. These points would clarify the meaning,

it is submitted, which the Court apparently intended.”

(Underlining ours.)

Second Memorandum (Concluding Paragraphs) :

“While the motion refers to the amendment of the

Findings of Fact, this is not a motion under Rule 59

for major changes in the Findings of Fact. It is a

motion under Rule 60(a) for the correction of clerical

mistakes, merely the identification of the parts re-

ferred to, which it is quite apparent the Court evi-

dently intended, (Underlining ours)

That sort of mistake can be corrected at any time.

There is no limitation thereon according to the Rule.

The Court would be justified, it is believed, in with-

drawing the Judgment and Findings of Fact to cor-

rect such formal errors for clarification.”

Where the intention of the court is “evident” and “ap-

parent” as is here acknowledged by counsel, no grounds

exist for amendment under Rule 60(a). The motion for

relief in respect to Rule 60(a) is denied.

The contention presented in plaintiff’s first memoran-

dum that Rule 60(b) had some application in this case

was completely unsupported in that this court was of-

fered no instance of “mistake, inadvertence, surprise, or

excusable neglect,” or anything of any nature either in

the form of affidavit or by reference to any portion of

the record before this court or the Court of Appeals to

justify the use of this rule. Several weeks later, how-

ever, on September 28, 1956, the plaintiff, in an apparent

attempt to supply grounds for the invocation of Rule

60(b) filed an affidavit relating to efforts of Washington

and local counsel to file the notice of appeal. This affi-

davit was substantially to the same effect as the affidavit

a Maan eh tr erences Sete tet ee

14

dated August 7, 1956, filed in the Court of Appeals, by

the plaintiff in Opposition to defendants’ motion for dis.

missal of the appeal.

It is apparent from the substantially more extended

treatment given on oral argument and written memoranda,

that the plaintiff places greater, if not total reliance on

this second contention that he is entitled to relief under

Rule 60 (b)(1) and (6). His position in this respect is

as devoid of merit as his first contention. Rule 60 (b) (1)

and (6) in the respects urged, provides that:

“... the court may relieve a party .. . from a final

judgment, order, or proceeding for the following rea-

Sons: (1) mistake, inadvertence, surprise, or excusa-

ble neglect; . . . or (6) any other reason justifying

relief from the operation of the judgment,”

It should be emphasized at the outset that the express

purpose of Rule 60(b) is to provide the court with the

means of relieving a party from the oppression of a final

judgment or order upon a proper showing. Plaintiff's

motion is in no wise in accord with this fundamental

purpose. While he does move that the final order be va-

cated and amended, he also asks that that identical final

order be reinstated. In other words, the burden of the

final order or judgment would still be in operation.

5 ADEE AAS SRO pb ON aR NOT at ait oe at

Plaintiff has specified but two respects in which he asks

for amendment of the findings of fact. He himself has

minimized them as “clerical errors” correctible under Rule

60(a), and we have accordingly dealt with them under such

section. The most favorable intendment under the con-

fused state of the pleadings that we ean give him is that

he also urges that these self-styled “clerical error” amend-

ments be made under Rule 60\b), if leave is denied under

Rule 60(a). Even if such relief were to be given, and the

final order were reinstated, the burden of that final order

BS” A TCE ST

15

rially unchanged. It would seem unnecessary to observe

that unless the purpose for which the rule was enacted

can be achieved, it should not be employed. The plain-

tiff does not and cannot point to any instance of mis-

take, inadvertence, surprise or excusable neglect, the hap-

pening of which resulted in the entry of the judgment from

which he asks relief. The only act or omission which is

urged as an instance of excusable neglect or inadvertence

is one which relates solely to an essential step in the ap-

peals procedure. While Rule 60(b)(1) does not expressly

say that a showing must be made that the final judgment,

order, or proceeding was entered because of mistake, in-

advertence, surprise, or excusable neglect, it appears to

us implicit under the rule. Since it clearly appears that

plaintiff does not in reality seek the relief to be afforded

by 60(b), and obviously cannot demonstrate a relevant

instance of excusable neglect, his motion in this respect

must be denied.

Rule 60(b) and its counterparts in state statutes, have

proven themselves to be valuable, equitable and humane

discretionary powers by which courts have been able to

relieve the oppressed from the burden of judgments un-

fairly, fraudulently or mistakenly entered. To use Rule

60(b) for the purpose of circumventing another rule, in

this case Rule 73(a), would be a perversion of the rule

and its purpose.

Whether the grant of the relief asked for here—vaca-

tion, amendment and reinstatement of the final order or

judgment—would in a meritorious case have the effect of

establishing new limits within which to file notice of ap-

peal was not presented and it not decided.

Plaintiff’s motion to vacate, amend and reinstate this

court’s final order of March 12, 1956, is denied.

Dated, Milwaukee, Wisconsin, this 30th day of October,

1956.

Rosert E. Texan

U. S. District Judge

BS IEE LER PORES DAI, PAIN OEE ID

16 :

NOTICE OF APPEAL TO COURT OF APPEALS

Notice is hereby given that Leonard C. Edwards, d/b/a

Edwards Air Hose Bracket Company, Plaintiff, hereby

appeals to the Court of Appeals for the Seventh Circuit

from the final Order of this Court, entered herein on

October 30, 1956, in the above-entitled action, denying

Plaintiff’s Motion to Vacate, Amend and Reinstate its

Final Order and Opinion of March 12, 1956.

MOTION TO DISMISS APPEAL

Appellees, Velvac, Ine. and Waller Carson, move the

court to dismiss the plaintiff-appellant’s appeal herein

from the order of this United States District Court for the

Eastern District of Wisconsin entered on October 30,

1956, denying plaintiff's motion to vacate, amend and

reinstate its final order of March 12, 1956, on the grounds

that plaintiff-appellant’s motion was not timely made and

that the United States Court of Appeals for the Seventh

Cireuit as already adjudicated the plaintiff-appellant’s

rights when on October 14, 1956, it dismissed the plain-

tiff-appellant’s appeal from the United States District

Court’s final order which dismissed plaintiff's complaint

on the grounds that the plaintiff-appellant had not filed

its notice of appeal within time fixed by Rule 73(a) of

the Federal Rules of Civil Procedure.

Dated February 8, 1957.

cd A KAsiy

——

17

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago 10, Illinois

February 25, 1957

Before

Hon. F. RYAN DUFFY, CHIEF JUDGE

Hon. WALTER C. LINDLEY, CIRCUIT JUDGE

No. 11960

LEONARD C. EDWARDS, d/b/a

EDWARDS AIR HOSE BRACKET COMPANY,

Plaintiff-A ppellant

v.

VELVAC, INC., WALLER CARSON

and H, R. SALTER,

Defendants-A ppellees

~ Appeal from the United States District Court

for the Eastern District of Wisconsin.

On consideration of the motion of Velvac, Inc. and

Waller Carson, defendants and appellees, that the appeal

to this Court by Leonard C. Edwards, d/b/a Edwards

Air Hose Bracket Company, plaintiff and appellant, from

the order of the United States District Court entered on

October 30, 1956 be dismissed, the answer thereto of

plaintiff-appellant, and the briefs of counsel for the

parties, the Court being fully advised in the premises,

IT IS ORDERED, that said motion to dismiss said ap-

peal be, and the same hereby is, granted, and that said

appeal be, and the same hereby is, dismissed.

—_— —

ore ae

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18

MOTION TO REINSTATE APPEAL OR STATE

THE GROUNDS FOR DISMISSAL

Now comes the Plaintiff-Appellant in the above-entitled

cause, and moves the Court for an Order to vacate the

Order dated February 25, 1957 and to reinstate this ap-

peal, which was ordered dismissed thereby, or to state

the grounds for dismissal of the appeal.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago 10, Illinois

March 27, 1957

Before

Hon. F. RYAN DUFFY, CHIEF JUDGE

Hon. WALTER C. LINDLEY, CIRCUIT JUDGE

No. 11960

LEONARD (. EDWARDS, d/b/a

EDWARDS AIR HOSE BRACKET COMPANY,

Plaintiff-Appellant

v.

VELVAC, INC., WALLER CARSON

and H, R. SALTER,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Wiconsin,

On March 12, 1956 the District Court for the Eastern

District of Wisconsin entered an order and judgment

. Spree pan

LIN / CURIE cial PINON MAIN NOP IMAP HOD ONLI IOS ‘

_—_7_

19

dismissing the complaint herein. A notice of appeal to

this Court was filed by plaintiff in the District Court on

April 12, 1956. On motion duly made this Court, on

August 14, 1956, entered an order dismissing the appeal

as not timely filed. On August 23, 1956 plaintiff-appellant

filed a motion in the District Court to vacate, amend and

reinstate the District Court’s final order and opinion, as-

serting that said motion was based upon Rules 60(a) and

60(b) Federal Rules of Civil Procedure. On October 30,

1956 the District Court entered an order denying the

motion to vacate, amend and reinstate. Plaintiff ap-

pealed to this Court from that order. On motion duly

made this Court, on February 25, 1957 entered an order

dismissing said appeal. On March 6, 1957 plaintiff-

appellant filed in this Court a “motion to reinstate appeal

or state the grounds for dismissal.” Plaintiff’s attorney

filed a brief supporting said motion. On October 13, 1957,

defendants-appellees filed an answer, which answer incor-

porated a citation of authorities. On March 14, 1957

plaintiff-appellant filed a motion for leave to file a reply

memorandum.

IT IS ORDERED:

1) Leave is granted for plaintiff to file the proffered

reply memorandum;

2) The motion of plaintiff-appellant to reinstate its

appeal or for this Court to state grounds for dismissal

be and the same is hereby denied.