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Eady v. Foerder

United States Court of Appeals, Seventh Circuit
Jul 13, 1967
381 F.2d 980 (7th Cir. 1967)

Summary

finding justifiable excuse for failure to file motion within ten days where plaintiffs relied on district court's order allowing extension of time

Summary of this case from Pahuta v. Massey-Ferguson, Inc.

Opinion

No. 16069.

July 13, 1967.

John T. Kennedy, Chicago, Ill., for appellant.

Allen S. Gerrard, David N. Rosner, Chicago, Ill., for appellees.

Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.


Otto R. Foerder, defendant, has appealed from the judgment or order of the district court entered November 7, 1966, granting plaintiffs' motion for a new trial in the above-entitled case.

On April 14, 1966, in an action brought by plaintiffs to recover damages occasioned by the alleged negligence of defendant in driving his automobile, the jury returned a verdict for defendant.

The district judge's minute order, following the recital of the receipt of the verdict, reads, verbatim:

Judgment to enter. Leave to plaintiff to file any and all post trial motions with brief and written argument in support thereof within 30 days. Opposing brief and argument 30 days thereafter — reply thereto 10 days — whereupon said motions will be disposed of by the court without oral argument.

After the verdict was read the court directed judgment to be entered on the verdict. Then the court asked plaintiffs' counsel if he was going to make any motion notwithstanding the judgment, and suggested to counsel for plaintiff "that you make your motion now and then file your brief. The Rule gives you five, ten and five days, but I will give you longer if you want." Plaintiffs' counsel asked if it would be permissible to have thirty days. The court then said "Get everything in your briefs. There will be no oral argument. * * *"

On May 12, 1966 plaintiffs filed a typewritten motion for a new trial, which the court by its November 7, 1966 order granted. The order recited, in part:

"* * * it being the finding of the court based upon a review of its trial notes that the jury verdict rendered herein was and is against the substantial and manifest weight of the evidence."

Defendant contends that the court erred in granting this motion for a new trial because it was not served within the ten days required by Rule 59(b). He also contends that rule 6(b), providing for enlargement of time, specifically excludes rule 59(b).

Rule 59(b) reads:

* * * A motion for a new trial shall be served not later than 10 days after the entry of the judgment. * * *

We are convinced by the circumstances in this case that the court properly entertained the motion for a new trial and we would not be justified in reversing its November 7, 1966 order. This position is in harmony with the holdings in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964). We feel that there are "unique circumstances" present in the case at bar which warrant the result which we reach herein. Reasonably construed, the facts appearing in the record indicate that plaintiffs, in reliance upon the district court's order of April 14, 1966, filed a motion for a new trial within the extended period of time. The implication of the November 7, 1966 order is that there was justifiable excuse for plaintiffs' failure to file their motion within ten days from the date of entry of judgment. That determination we should not set aside.

We hold that the district court had jurisdiction to enter the order granting plaintiffs' motion for a new trial. The merits of that order are not appealable, however, and we express no opinion as to them. Cooper v. Midwest Feed Products Co., 8 Cir., 271 F.2d 177 (1959). The order is affirmed and the cause is remanded for further proceedings.

Order affirmed and cause remanded.


Summaries of

Eady v. Foerder

United States Court of Appeals, Seventh Circuit
Jul 13, 1967
381 F.2d 980 (7th Cir. 1967)

finding justifiable excuse for failure to file motion within ten days where plaintiffs relied on district court's order allowing extension of time

Summary of this case from Pahuta v. Massey-Ferguson, Inc.

In Eady, the district court told counsel for the losing party that he could have thirty days to file any post-trial motions.

Summary of this case from Varhol v. National R.R. Passenger Corp.

In Eady, after entry of judgment, the district court judge stated to plaintiffs' counsel that he would extend the time to file any post-trial motions to thirty days.

Summary of this case from Aponte v. City of Chicago

In Eady, after a jury's verdict was read, the court asked plaintiffs' counsel if he was going to make a motion notwithstanding the verdict and stated that "[t]he Rule gives you five, ten and five days, but I will give you longer if you want."

Summary of this case from Robinson v. City of Harvey

In Eady, the plaintiff had filed suit to recover damages from the defendant alleging negligence in an automobile accident.

Summary of this case from U.S. v. White

In Eady, the plaintiff had filed suit to recover damages from the defendant alleging negligence in an automobile accident.

Summary of this case from U.S. v. White

relying upon district court's order that extended time period was a justifiable excuse for plaintiff's failure to file motion within ten days of judgment

Summary of this case from Hudson v. Village Inn Pancake House
Case details for

Eady v. Foerder

Case Details

Full title:Russell EADY, a minor, by Lillian Becker, his mother and next friend, and…

Court:United States Court of Appeals, Seventh Circuit

Date published: Jul 13, 1967

Citations

381 F.2d 980 (7th Cir. 1967)

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