225 F2d 922 Kahler-Ellis Company v. Ohio Turnpike Commission

225 F.2d 922

KAHLER-ELLIS COMPANY, etc., Appellant,

v.

The OHIO TURNPIKE COMMISSION and the Ohio National Bank, Appellees.

No. 12634.

United States Court of Appeals Sixth Circuit.

Sept. 12, 1955.

William Ammer, Circleville, Ohio, Edward N. Barnard, Detroit, Mich., for appellant.

Squire, Sanders & Dempsey, Cleveland, Ohio, Frank C. Dunbar, John Caren, Columbus, Ohio, for appellees.

Before STEWART, Circuit Judge.

STEWART, Circuit Judge.

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1

This cause came on to be heard on appellee's motion to dismiss the appeal on the ground that this court is without jurisdiction to hear the appeal because notice of appeal was not timely filed.

2

Judgment was entered June 2, 1955. On July 2, counsel for appellant deposited the notice of appeal in the mails. The clerk of court received the notice on July 5.

3

Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that notice be filed within thirty days of the entry of judgment. Here, only the act of depositing the notice in the mails occurred within thirty days. This is not a filing; only when the clerk acquires custody has it been filed. Casalduc v. Diaz, 1 Cir., 1941, 117 F.2d 915; Lejeune v. Midwestern Ins. Co., 5 Cir., 1952, 197 F.2d 149; see also Gradsky v. Commissioner, 6 Cir., 1954, 218 F.2d 703. Since the notice of appeal is jurisdictional, the motion to dismiss must be granted. Marten v. Hess, 6 Cir., 1949, 176 F.2d 834.

4

It is, accordingly, ordered that the appeal in the above case be and the same is hereby dismissed.