430 F.2d 1357 - Vigil v. United States — 430 F.2d 1357

How this case has been cited

Cited by 16 later decisions — most recently September 2010

9 federal appellate · 1 district · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Charles S. Vigil, Denver, Colo., for plaintiffs-appellants.

¶2Frank B. Friedman, Dept, of Justice, Washington, D. C. (Shiro Kashiwa, Asst. Atty. Gen., James L. Treece, U. S. Atty., James R. Richards, Asst. U. S. Atty., Denver, Colo., and Raymond N. Zagone, Dept, of Justice, Washington, D. C., were with him on the brief), for defendants-appellees.

¶3Before HICKEY and HOLLOWAY, Circuit Judges, and EUBANKS, District Judge.

¶4PER CURIAM.

¶5An order of the United States District Court for the District of Colorado, 293 F.Supp. 1176, was entered on December 24,1968, dismissing plaintiffs-appellants’ complaint and action for failure to state a legally sufficient claim. Thereafter, on January 15, 1969, appellants tendered and sought leave to file an amended complaint. The motion to allow the filing was denied by order dated January 31, 1969.

¶6On February 24, 1969, the clerk of the district court received from appellants a notice of appeal stating such appeal to be taken from the order of January 31, 1969. The United States contends the notice of appeal is faulty both as to timeliness and as an attempt to appeal from other than a final judgment.

¶7 Since the sixtieth day following December 24, 1968, fell on Saturday, February 22, 1969, we consider the notice of appeal to be timely under Fed.R. App.P. 4(a) and 26(a), if such notice is applicable to the order of dismissal. And although the notice of appeal is unambiguous and purports to appeal from the discretionary order of January 31, 1969, we think this incomplete compliance with *1358 rule 8(c) should not result in the loss of an intended appeal on the merits. See Cheney v. Moler, 10 Cir., 285 F.2d 116, 118, citing State Farm Mutual Automobile Ins. Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823. We hold jurisdiction exists to consider the appeal on its merits.

¶8The exhaustive memorandum decision of the trial court, cited supra, fully sets forth the issues and contentions of the parties pertaining to the merits. The judgment of the trial court is manifestly correct and we affirm for the reasons stated in Judge Doyle’s memorandum decision.