Gulf-tampa Drydock Company, Plaintiff-appellee, v. the Vessel Virginia Trader, Her Engines, Etc., and American Trading and Production Company, Defendant-appellants, 435 F.2d 150 (5th Cir. 1970)

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US Court of Appeals for the Fifth Circuit - 435 F.2d 150 (5th Cir. 1970)

December 2, 1970
Rehearing Denied December 22, 1970


James O. Davis, Jr., Margaret Deaton, Tampa, Fla., for defendant-appellants.

Jack C. Rinard, Brooks P. Hoyt, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for plaintiff-appellee.

Before TUTTLE, DYER and SIMPSON, Circuit Judges.

PER CURIAM:


Summary judgment in favor of Gulf-Tampa Drydock Company was entered by the trial court on December 1, 1969. Pursuant to Rule 4, Federal Rules of Appellate Procedure, if appellants wished to file notice of appeal, they had to do so within thirty days of entry of summary judgment, unless the time was tolled by the timely filing of a motion for rehearing under Rule 59, Federal Rules of Civil Procedure. It appears that such motion, in this case, was not filed until December 12, 1969.

It is fundamental that the time requirement within which an appeal must be taken is mandatory and jurisdictional. See Knowles v. United States, 5 Cir., 1958, 260 F.2d 852, 854. Since the thirty-day period was not tolled by the timely filing of a motion for rehearing, the failure of appellant to file its notice of appeal until January 23, 1970, deprives this court of appellate jurisdiction. See Rule 73, Federal Rules of Civil Procedure.

The appeal is dismissed for want of jurisdiction.