North Umberland Mining Co. v. Standard Acc. Ins. Co, 193 F.2d 951 (9th Cir. 1952)

We are confronted on this appeal with an apparently novel question concerning our jurisdiction to entertain it.

The judgment attempted to be appealed from was entered January 25, 1951. No appeal was taken within the 30-day period prescribed by Fed.Rules Civ.Proc. rule 73(a), 28 U.S.C.A. On March 20, 1951, counsel for the losing party filed and presented to the district court an affidavit in which he stated that through inadvertence he had permitted the 30-day period to expire because he was not aware of the entry of the judgment and did not receive notice of it. He asked that the time for appeal be extended to March 26, 1951. On the same day the court, without notice to appellee, made an order extending the time to the date requested. Notice of appeal, dated March 22, 1951, was thereafter served by appellant by mail within the extended time.

On April 6, 1951, appellee filed notice of motion and motion for reconsideration and vacation by the court of its order on the ground that the same was made without notice to appellee or motion made in open court, and without opportunity for appellee to be heard or to object thereto. The further ground was advanced that the files, records, proceedings and dockets relating to the cause affirmatively show that the clerk on the date of the entry of the judgment notified all counsel of the entry of the same. Accompanying the motion was an affidavit of appellee's counsel of record stating that he had received from the clerk on January 26, 1951, a copy of the notice of entry of judgment and is informed and alleges that like notice was sent to all attorneys of record. Attached to the affidavit was a copy of the clerk's docket entry of January 25, 1951, giving the name and address of appellant's counsel, and other counsel in the case, and containing notice that judgment in the cause had been that day entered. This showing was not controverted.

When the motion to vacate the ex parte extension order came on to be heard the court declined to rule upon it on the ground that "if the order extending time was a voidable order, the taking of the appeal has robbed the District Court of jurisdiction; and if, on the other hand, it is a void order, it is void without this Court acting thereon."

The provisions governing the situation are found in Rules 77(d), 73(a), and 6(b) and (d) of the Rules of Civil Procedure, the material parts of which are shown on the margin.¹  The time for taking an appeal in this case was, of course, 30 days from the entry of the judgment as prescribed by Rule 73(a). Had the request for enlargement of the time been made before the expiration of that period the court would have been empowered to order the enlargement "with or without motion or notice." But since it was made after expiration of the period, that is to say at a time when the movant was already in default, the court was without authority to act ex parte; it might proceed only upon motion and after notice of hearing served on the party or parties affected. Such is the unmistakable import of Rule 6(b) and (d); and there is nothing anywhere in the Rules or in the nature of the proceeding itself suggestive of a contrary interpretation. Compare the provision of Rule 6(d) conditioning even the ex parte shortening of the period of notice on the requirement of a showing of cause. This case, in respect of the facts bearing on the claim of excusable neglect, affords an excellent illustration of the wisdom of empowering the court to act in such a matter only after notice and opportunity given the opposite party to be heard.

In sum, we conclude that the court is without authority to extend the time for appeal except upon compliance with the rules governing the subject. The extension order here granted ex parte was void ab initio, and the appeal is accordingly dismissed.