Summary
depositing a document in the mail "is not a filing; only when the clerk acquires custody has [a document] been filed"
Summary of this case from Banner Bank v. Robertson (In re Robertson)Opinion
No. 12634.
September 12, 1955.
William Ammer, Circleville, Ohio, Edward N. Barnard, Detroit, Mich., for appellant.
Squire, Sanders Dempsey, Cleveland, Ohio, Frank C. Dunbar, John Caren, Columbus, Ohio, for appellees.
Before STEWART, Circuit Judge.
This cause came on to be heard on appellee's motion to dismiss the appeal on the ground that this court is without jurisdiction to hear the appeal because notice of appeal was not timely filed.
Judgment was entered June 2, 1955. On July 2, counsel for appellant deposited the notice of appeal in the mails. The clerk of court received the notice on July 5.
Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that notice be filed within thirty days of the entry of judgment. Here, only the act of depositing the notice in the mails occurred within thirty days. This is not a filing; only when the clerk acquires custody has it been filed. Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915; Lejeune v. Midwestern Ins. Co., 5 Cir., 1952, 197 F.2d 149; see also Gradsky v. Commissioner, 6 Cir., 1954, 218 F.2d 703. Since the notice of appeal is jurisdictional, the motion to dismiss must be granted. Marten v. Hess, 6 Cir., 1949, 176 F.2d 834.
It is, accordingly, ordered that the appeal in the above case be and the same is hereby dismissed.