Eugene Ross Dockery and L. W. Bulman, D/b/a B & D Antique Shop, Appellants, v. the Travelers Company of Hartford, Connecticut, Appellee.eugene Ross Dockery and L. W. Bulman, D/b/a B & D Antique Shop, Appellants, v. National Surety Corporation, Appellee, 349 F.2d 1017 (5th Cir. 1965)

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US Court of Appeals for the Fifth Circuit - 349 F.2d 1017 (5th Cir. 1965) July 15, 1965

Edward J. Henning, Atlanta, Ga., for appellants.

D. Wright Mitchell, Dalton, Ga., Robert Edward Surles, Summerville, Ga., for appellee.

Before HUTCHESON, RIVES and BELL, Circuit Judges.


In these cases the district court entered orders of dismissal on September 4, 1964. On September 11, 1964, the plaintiffs filed timely motions to set aside the orders of dismissal and reinstate the case. Those motions were denied by the district court on October 13, 1964. The plaintiffs filed motions to reconsider on October 22, 1964, based on substantially the same grounds as urged in the earlier motions which had been denied on October 13, 1964. On November 12, 1964, the district court denied the motions to reconsider. Notices of appeal were filed on November 18, 1964.

Under Rule 73(a), Federal Rules of Civil Procedure, it is clear that the first motions filed by the plaintiffs terminated the running of the time for appeal. Upon entry of orders disposing of those motions, the second motions, being motions to reconsider such orders, did not again terminate the running of the time for appeal. A fair reading of Rule 73(a) necessitates that result, and the courts are in accord. Marten v. Hess, 6 Cir. 1949, 176 F.2d 834; Randolph v. Randolph, 1952, 91 U.S.App.D.C. 170, 198 F.2d 956; Deena Products Co. v. United Brick & Clay Workers, 6 Cir. 1952, 195 F.2d 612; Terrasi v. South Atlantic Lines, 2 Cir. 1955, 226 F.2d 823; Kelly v. Pennsylvania R. R., 3 Cir. 1955, 228 F.2d 727; Stiller v. Squeeze-A-Purse Corp., 6 Cir. 1958, 251 F.2d 561; Shotkin v. Weksler, 5 Cir. 1958, 254 F.2d 596; Yates v. Behrend, 1960, 108 U.S.App.D.C. 56, 280 F.2d 64.

The appeals are dismissed for failure to file timely notices of appeal.

Appeals dismissed.