OpenJurist

222 F2d 425 No 6986

222 F.2d 425

DIRECTOR OF THE UNITED STATES BUREAU OF MINES, Appellant,

v.

THREE FORK COAL COMPANY, Inc., (Cassity Mine, Nos. 2, 3 and 6 Openings), Appellee.

No. 6986.

United States Court of Appeals Fourth Circuit.

Argued April 22, 1955.

Decided May 6, 1955.

Jacob S. Hyer, Elkins, W. Va., in support of motion to dismiss.

John G. Laughlin, Atty., Department of Justice, Washington, D. C., in opposition.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

1

This is a motion to dismiss a notice of appeal from an order of the Federal Coal Mine Safety Board of Review entered March 4, 1955. The applicable statute provides for review upon the filing in the United States Court of Appeals of the Circuit of a notice of appeal within thirty days of the making of such order. The notice of appeal here was not received in the office of the clerk of this court until after the expiration of the thirty day period, although deposited in the mails in ample time to have been received in the clerk's office in ordinary course within the period. The statute, however, is jurisdictional; and its requirement is, not that the notice of appeal be deposited in the mails, but that it be filed in court within the thirty day period. As this was not done within the time allowed, there is nothing that we can do but grant the motion and dismiss the notice of appeal. See Kiker v. Commissioner of Internal Revenue, 4 Cir., 218 F.2d 389; Farmers' State Bank v. Thompson, 5 Cir., 261 F. 166; Old Nick Williams Co. v. United States, 215 U.S. 541, 30 S.Ct. 221, 54 L.Ed. 318.

2

Appeal dismissed.