Onе of the two appellees, Peyton’s Inc., has filed a motion to dismiss the aрpeal on the ground notice of appeal was not timely filed.
This is the sequence of events:
July 18 [1974]: judgment entered in favor of appellees.
July 29: appellant filed motion for new trial.
August 13: with motion for new trial pending, appellant filed notice of appeal.
September 17: motion for new trial denied.
September 24: appellant paid his filing fee to this court.
December 9: appellant’s brief [printed] filed.
January 10: appellee Peyton filed its brief [printed] and motion to dismiss the apрeal.
January 13: appellee Travco filed its brief [printed].
The argument of appellee Peyton’s Inc. runs this way: (a) notice оf appeal was required to be filed within 30 days of entry of judgment appeаled from, Rule 4(a), F.R.Civ.P.; (b) during the time a motion for new trial is pending the running of time for appeal is suspended, and the judgment is not final and thus not appealable until the mоtion is ruled on. Rule 59; 9 J. Moore, Federal Practice If 110.08 [3], at 120; (c) since premature, the appeal sought to be taken on August 13 is a nullity. Turner v. HMH Publishing Co.,
The per curiam opinion in Turner v. HMH supports appellee’s motion. But we think the correct rule is that of the later and carefully considered opinion by Judge Thornberry in Markham v. Holt,
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This Court has consistently adhered to the policy of exercising all proper meаns to prevent the loss of valuable rights when the validity of an appeal is challenged not because something was done too late, but rather beсause it was done too soon. Avery v. Fischer, 5th Cir. 1966,360 F.2d 719 , 723; Carter v. Campbell, 5th Cir. 1960,285 F.2d 68 ; Bates v. Batte, 5th Cir. 1951,187 F.2d 142 , 143, cert. denied,342 U.S. 815 ,72 S.Ct. 29 ,96 L.Ed. 616 . The basic policy considеrations underlying the limitation that a final judgment is a prerequisite to appeаlability are the excessive inconvenience and costs occаsioned by piecemeal review on the one hand, and the danger of dеnying justice by needless delay on the other. Gillespie v. United States Steel Corр., 1964,379 U.S. 148 , 152-153,85 S.Ct. 308 , 311,13 L.Ed.2d 199 , 203; In re Forstner Chain Corp., 1st Cir., 1949,177 F.2d 572 , 575. The purpose of requiring the filing of a timely notice of appeal is to advise the opposing party that an appeal is being taken from a specific judgment, and such notice should therefore contain sufficient information so as not to prejudice or mislead the appellee. Wilson v. Southern Ry., 5th Cir. 1945,147 F.2d 165 . The assumption of jurisdiction in the instant case, we are convincеd, does not violate the spirit of the final-judgment rule nor the notice-of-appeal requirements. This Circuit has long been committed to the rule that where, as in the instant case, it is obvious that the overriding intent was effectively to appeal, and no prejudice will result to the appellee, we are justified in treating the appeal as from a final judgment. See United States v. Stromberg, 5th Cir. 1955,227 F.2d 903 , 904; Atlantic Coast Line Ry. v. Mims, 5th Cir. 1952,199 F.2d 582 , 583, accord, Donovan v. Esso Shipping Co., 3d Cir. 1958,259 F.2d 65 , cert. denied, 1959,359 U.S. 907 ,79 S.Ct. 583 ,3 L.Ed.2d 572 .
These cases [Markham and the Ninth Circuit cases] make it clear that an appeal should not be dismissed because it was technically premature if in fact an appealable judgment or order was rendеred below, the appellant clearly manifested his intent to appeal from it and the prevailing party below can show no prejudice resulting from the prematurity of the notice.
There is no prejudice shown in this instance.
The motion is denied.
Notes
. Markham does not refer to Turner.