Summary
In Harlan v. Graybar Electric Co., 442 F.2d 425 (9th Cir. 1971), appellant asserted that late filing of a notice of appeal under FRAP 4(a) resulted from excusable neglect because 1) his counsel misread the rule and 2) although counsel knew of the entry of judgment, appellant did not. This court held that counsel's misreading of the rule indeed showed neglect but "it certainly does not make the neglect `excusable.'"
Summary of this case from Matter of Estate of Butler's Tire BatteryOpinion
No. 23920.
May 7, 1971.
Minor J. Schmid (argued), Gonick, Schmid Bernstein, Oakland, Cal., for appellant.
Walter R. Allan (argued), Noble K. Gregory, William I. Edlund of Pillsbury, Madison Sutro, San Francisco, Cal., for appellee.
Before KOELSCH, CARTER, and HUFSTEDLER, Circuit Judges.
The threshold question, the answer to which is dispositive of this appeal, is whether the facts set out in the affidavits supporting plaintiff-appellant's motion in the District Court to file, out of time, a notice of appeal from the civil judgment entered against him show "excusable neglect" within the meaning of Fed.R.App.P. 4(a).
We agree with the District Court that they do not.
Notice to appellant's counsel of the entry of the judgment constituted notice to appellant; hence, he may not assert that he did not know and therefore that his failure to act was "excusable." Howard v. Local 74, Wood, Wire and Metal Lathers International et al., 208 F.2d 930 (7th Cir. 1953) (explicating Rule 73(a) Fed.R.Civ.P. — the predecessor to Fed.R. App.P. 4(a) which latter rule according to the Advisory Committee's note to Rule 4 is "derived from Fed.R.Civ.P. 73(a) without any change of substance"). And although the fact that appellant's counsel "misread" the rule to allow sixty not thirty days in which to file the notice does show neglect, it certainly does not make the neglect "excusable."
Affirmed.