Corey v. Callahan
Opinion of the Court
The order appealed from in this case was entered August 8, 1980 (all dates are in 1980). The initial time for filing a notice of appeal thus expired September 8.
F.R.A.P. 4(a)(5) provides:
The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.
Appellants argue that, because 4(a)(5) refers to “the time prescribed by this Rule 4(a),” a literal reading of its provisions allows the district court, in its discretion, to grant an additional 10 day extension if a motion therefor is filed within 30 days of the expiration of the time for filing a notice of appeal, including extensions. Since 4(a)(5) is a part of 4(a), they contend that if the drafters of Rule 4 had intended a contrary construction they would have said “the time prescribed by Rule 4(a)(1) and 4(a)(3).” Because appellants’ motion for a second extension was filed within 30 days of the deadline established by the order of September 16, they conclude that it was timely and within the district court’s discretion to grant.
Appellants cite no authority in support of their construction of 4(a)(5), arguing simply that the history of Rule 4 has been one of increasing liberalization of its timeliness requirements and that their construction is within the literal language of the provision. We have found no authority addressing the issue or, indeed, even implying that it exists.
Appellants’ construction is clearly contrary to the intent of the rule. Rule 4(a)(5) specifically states that extensions shall not exceed 30 days past the prescribed time or 10 days after entry of the extension order. The ten day provision was added to make it clear that if a motion for extension of time is timely filed the district court may act upon it in the ordinary course, and is not required to rule on the motion within 30 days of the original deadline. See Notes of Advisory Committee on Appellate Rules. It was not intended to allow the district court to grant an indefinite series of 10 day extensions.
The time requirements contained in Rule 4 derive from the need for finality of judgments and an end to litigation. This policy would be defeated by any construction of the rule that would permit indefinite extensions of time for filing a notice of appeal. If we were to accept appellants’ construction of Rule 4(a)(5), a district court could,
The appeal is DISMISSED.
. September 7 was a Sunday. See F.R.A.P. 26(a).
. Appellants ignore the fact that the first extension properly could not have been granted beyond October 8 (30 days past the time prescribed by Rule 4(a)(1)). This does not affect appellants’ argument, however, because the second motion was filed within 30 days of that date.
Reference
- Full Case Name
- In the Matter of GAC CORPORATION, Bankrupt. Joseph COREY and Margaret Corey, William L. Whitenight, Bernice J. Whitenight, Eugene R. Laechelt, and Norma B. Laechelt v. Frank J. CALLAHAN and Herbert S. Freehling, Chapter X Co-Trustees for the Estate of GAC Properties, Inc.
- Cited By
- 1 case
- Status
- Published