Opinion · Court of Appeals for the Fifth Circuit
John T. Martin v. Louis Wainwright, Director, Division of Corrections, Etc.
John T. Martin v. Louis Wainwright, Dir., Div. of Corr., Etc., 469 F.2d 1072 (5th Cir. 1973)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1973-01-17
- Topic
- general
How later courts describe this case
- "[A]n untimely motion will not toll the time for taking an appeal." (citations omitted)
Citator
UpLaw has not yet analyzed John T. Martin v. Louis Wainwright, Director, Division of Corrections, Etc.. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 24 opinions
MARTIN v. WAINWRIGHT,469 F.2d 1072(5th Cir. 1972)
JOHN T. MARTIN, PETITIONER-APPELLANT, v. LOUIS WAINWRIGHT, DIRECTOR,
DIVISION OF CORRECTIONS, ETC., ET AL., RESPONDENTS-APPELLEES.
No. 72-1946.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
November 17, 1972.
Rehearing Denied January 17, 1973.
Daniel S. Dearing, Chief Trial Counsel, Dept. of Legal Affairs, Tallahassee, Fla., Robert L. Shevin, Atty. Gen., Tampa, Fla., for respondents-appellees.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
[2] We have concluded that this Court is without jurisdiction to adjudicate the appeal because our examination of the record shows that the appellant failed to file a timely notice of appeal as required by Rule4(a), F.R.A.P.
[3] After the district court dismissed the complaint on October 19, 1971, the appellant manifested no dissatisfaction with the ruling until December 30, 1971, or some 72 days after entry of judgment, at which time he filed a petition for rehearing. The petition was subsequently denied.
[4] The provisions of Rule59(b), F.R.Civ.P., make it clear that such a motion for new trial or for reconsideration must be filed within ten days of the court's judgment. The time requirement of Rule 59(b) is jurisdictional; for the court lacks authority to rule upon a motion filed beyond the statutory period. Albers v. Gant, 5th Cir. 1970,435 F.2d 146. Moreover, an untimely motion will not toll the time for taking an appeal. Hulson v. Atchison, Topeka Santa Fe Ry. Co., 7th Cir. 1961,289 F.2d 726, cert. denied 1961,368 U.S. 835,82 S.Ct. 61,7 L.Ed.2d 36. Cf. Maryland Tuna Corp. v. MS Benares, 2nd Cir. 1970,429 F.2d 307.
[5] Since the record in this case affirmatively discloses that no document which might reasonably be construed as a notice of appeal was filed until twelve days beyond the maximum extended time limitation under Rule4(a), F.R.A.P., the appeal must be dismissed for want of jurisdiction.SeeTribbitt v. Wainwright, 5th Cir. 1972,462 F.2d 600, and cases cited therein.
[6] Appeal dismissed.Page 1074
- Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970,431 F.2d 409, Part I. ↩
- 42 U.S.C. § 1983. ↩