CLARKSON S. FISHER, District Judge.
The Circuit Court of Appeals remanded this matter here for a determination of whether or not the appeal was timely filed.
The opinion of the Court of Appeals concerned itself with the return of the Notice of Appeal to the appellant because of a failure to pay the requisite fee.
However, a different problem is revealed by this Court's review of the file and correspondence in the office of the Clerk of the Court.
The Notice of Appeal proffered for filing on June 23, 1976, was well within the required time period, but did not comply with General Rule 4 C of the General Rules of this Court which mandates that a member of the bar of this Court sign all pleadings.
The Notice of Appeal, therefore, was properly returned to New York counsel by the clerk's office with a covering letter explaining the rule violation.
Subsequently, the Notice of Appeal was resubmitted for filing by local counsel and received by the clerk's office in the usual course of business on June 29, 1976. This later submission resulted in the receipt of the notice on the 31st day after the entry of judgment.
In the proceedings before the Circuit Court of Appeals, the appellees did not deny, nor could they, that a notice of appeal was received by the clerk's office within the required thirty days. In the above factual situation to find that the notice originally proffered by New York counsel and resubmitted by local counsel was untimely, would be an injustice to the appellant.
Therefore, although New York counsel did not comply with the General Rules of this Court, I will exercise the discretion vested in the Court by Rule 1 of the General Rules of this Court,
and find the Notice of Appeal received by the clerk's office on June 23, 1976 to be timely filed.
Submit an order.