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Raughley v. Pennsylvania Railroad Company.

decided: February 7, 1956.

BURTON R. RAUGHLEY, APPELLANT,
v.
PENNSYLVANIA RAILROAD COMPANY.



Author: Goodrich

Before GOODRICH, KALODNER and STALEY, Circuit Judges.

GOODRICH, Circuit Judge.

In this case the appellee has moved to dismiss the appellant's appeal, alleging it not to be timely brought. The case takes us to an examination and application of the Rules of Civil Procedure, 28 U.S.C., having to do with the regulations of time-liness for appeal.

Specifically to present the problem the docket entries are herewith set out:

"Dec. 10, 1954. Opinion, Kirkpatrick, Ch. J. granting judgment in favor of defendant, filed.

"Dec. 10, 1954. Judgment in favor of defendant with costs, filed. 12/13/54 Noted and Notice Mailed.

"Jan. 4, 1955. Plaintiff's Petition for Reargument and Order of Court allowing same filed. (Noted and Notice mailed 1/5/55.)

"Feb. 28, 1955. Argued sur Petition for Reargument on motion for judgment on the pleadings.

"May 12, 1955. Opinion, Kirkpatrick, Ch. J., sur reargument filed.

"May 16, 1955. Order of Court denying motion for reargument, filed. 5/17/55. Noted and Notice Mailed.

"May 16, 1955. Plaintiff's notice of appeal, filed."

A casual inspection of these entries shows that the original judgment was granted December 10th and the notice of appeal was filed the following May 16th. Can the appellant bring his case within any of the provisions which extend the ordinary time for taking an appeal?

We start with rule 73 as amended in 1946 and 1948. Rule 73(a) lays down the general rule that the appeal must be taken within thirty days from the entry of the judgment appealed from. Then follow certain exceptions not applicable here. Following these is certain language which had better be quoted.

"* * * The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is ...


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