Southern R. Co. v. Wilson, 213 F.2d 870 (4th Cir. 1954)Annotate this Case
Decided June 14, 1954
Henry H. Edens, Columbia, S. C., in support of motion to dismiss appeal.
John Gregg McMaster, Columbia, S. C., in opposition to motion.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal in which appellant failed to give notice of appeal within thirty days of the entry of the judgment and in which the trial judge denied a motion to extend the time under Rule 73(a), 28 U.S.C.A. We find no basis for holding that the judge abused the discretion in this regard, which, by the rule, is vested in him and not in this court. The failure to give notice of appeal within the time prescribed by the rule is, therefore, a sufficient ground for dismissing the appeal before us. An additional ground exists, however, in the fact that the appeal presents no question reviewable by this court, since the only point raised is that the court erred in not setting aside the verdict of the jury as excessive and it is well settled that this is a matter resting in the sound discretion of the trial judge which is not reviewable on appeal in the absence of abuse. An examination of the record shows that there was no abuse of this discretion and no contention is made in the specification of grounds of appeal that it was abused. We base the dismissal of the appeal on this ground rather than upon failure to give timely notice. Since appellant had no right of review with respect to the question which it seeks to present by the appeal, it manifestly lost nothing by failure to appeal in time; and it is proper that this be made clear in the dismissal.