102 F.2d 525 | 2d Cir. | 1939
The appellant, Siegel, is a trustee in liquidation of the Lion Varnish Company, and is the successor of the appellee, Margiotta, who had been its trustee during an unsuccessful effort at- reorganization. On December 21, 1938, 'the judge made an allowance to Margiotta by an order which was served on Siegel on January 25, 1939, though it does not appear whether “proof of notice” was ever filed in the district court, as required by § 25a, 11 U.S.C.A. § 48 (a). On February 21, 1939, Siegel, wishing to appeal from the order, and supposing that he must get leave from this court, filed a proper petition for that purpose with a notice of motion. The question is whether the appeal papers were served in season, assuming, as we do, that the notice of motion may be taken as the equivalent of a' notice of appeal, since no leave was necessary. London v. O’Dougherty, 2 Cir., 102 F.2d 524.
U-S.C.A. § 48(a), as it now stands declares that appeals * * * shall be taken within thirty days after written notice * * of the entry of the judgment * ■ proof of which notice shall be filed within five days after service or, if such notice be not served and filed, then within forty days from such entry”. The appellant’s theory is that this clause must be read in the alternative: if ■ the appellee does not serve the order, the appellant must appeal within forty days; but if he does serve it, the appellant has thirty days from the time of service whenever it is served. Literally, the words can certainly be so read, but the results are then quite absurd. For example, if the appellee waits more than forty days to serve the order, so that the time to appeal has already expired, service will revive the right. Again, if the appel|fe se™s thf. °idef. but neglects to file .Pr°of+ of. notlf ’Jhe 15 skut,-off in forty days, for the notice has not been served and filed. Surely the appellee may not CU(. 0g the appellant’s time to appeal fiy failing in his duty to file the notice; and in general it would be very strange if notice to the appellant were to give him a longer time to appeal then he had without it. The purpose of the section was probaJjly to promote notice of entry to the other side: such a construction would make it unlikely, unless it were made within ten days.
, ^ think that the meaning is reasonabl7 Plaln- It has always been the uniform custom m federal courts so far as we kn°w> Jo make the time to appeal begin ™th the entry of tbe Judgment, not with seJthe putative appellant: hat the New Rules, of Civil Procedure (28 U-S'C^- s^t10* 723c> have n°! changed. The Chandler Act has preserved J13-*- cust_om> though it has leng ened. t e former tlme b7 ten days. Thus the appellant must at bls risk keep watch uPon the entry of an order. But he may not have £ujj forty days; the appellee can cut it down by serving the judgment within ten and fifing the notice within five days thereafter. We cannot ascribe any cons¡stent and intelligible purpose to the ^ unless wg read it in this way> and ^ ^ that this is itg meaning.
Appeal dismissed.
