255 F2d 100 Shotkin v. Popenhager

255 F.2d 100

Bernard M. SHOTKIN, Appellant,
Nolan POPENHAGER and his wife, Estelle Popenhager, et al., Appellees.

No. 17079.

United States Court of Appeals Fifth Circuit.

May 7, 1958, Rehearing Denied June 11, 1958.

Bernard M. Shotkin, in pro. per.

Charles H. Wakeman, Jr., Miami, Fla., John R. Lindsey, Coral Gables, Fla., for appellees.

Before TUTTLE, BROWN and WISDOM, Circuit Judges.


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This is an appeal from a judgment of the District Court dismissing plaintiff's complaint for lack of federal jurisdiction. It being apparent from the record that plaintiff's notice of appeal was not timely, being filed after the 30 days prescribed by Rule 73(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the merits of the judgment of the District Court need not be discussed.


The complaint, filed on June 18, 1957, was dismissed by the Court with prejudice on July 25, 1957. On August 6, 1957 the District Court denied plaintiff's motion for rehearing, and it was not until September 10, 1957 that the notice of appeal was filed. Since the time requirement of Rule 73(a) is mandatory and jurisdictional, Waddell v. Chicago Land Clearance Commission, 7 Cir., 206 F.2d 748; Deena Products Co. v. United Brick & Clay Workers of America, 6 Cir., 195 F.2d 612, certiorari denied 344 U.S. 822, 73 S.Ct. 21, 97 L.Ed. 640; Marten v. Hess, 6 Cir., 176 F.2d 834, the right of appeal is lost and this appeal must be dismissed.


Appeal dismissed.