J. Norman 'Stoney' Stone v. The Honorable Wyoming Supreme Court, 236 F.2d 275, 10th Cir. (1956)
J. Norman 'Stoney' Stone v. The Honorable Wyoming Supreme Court, 236 F.2d 275, 10th Cir. (1956)
2d 275
Courts of appeals are courts of limited jurisdiction; and save for excepted
instances in which it is provided otherwise by statute, they have jurisdiction to
review only final decisions of the district courts. Reeves v. Beardall, 316 U.S.
283, 62 S.Ct. 1085, 86 L.Ed. 1478; Crutcher v. Joyce, 10 Cir., 134 F.2d 809;
State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903;
Breeding Motor Freight Lines v. Reconstruction Finance Corp., 10 Cir., 172
F.2d 416, certiorari denied 338 U.S. 814, 70 S.Ct. 54, 94 L.Ed. 493; Kanatser v.
Chrysler Corp., 10 Cir., 195 F.2d 104; The Atchison, Topeka and Santa Fe
Railway Co. v. Jackson, 10 Cir., 235 F.2d 390.
With exceptions which do not have any material bearing here, Rule of Civil
Procedure 73(a), 28 U.S.C.A., provides that when an appeal is permitted by law
from a district court to a court of appeals, it shall be taken by filing with the
district court a notice of appeal, and that such notice shall be filed within thirty
days after entry of the judgment from which the appeal is taken. And the filing
of the notice within that time is essential to the jurisdiction of the court of
appeals. Spengler v. Hughes Tool Co., 10 Cir., 169 F.2d 166. The order of the
court dismissing the petition for the writ was entered on December 16, 1955,
and the notice of appeal by which the proceeding was brought to this court was
filed February 28, 1956. If the notice could be considered as an attempt to
appeal from the final order dismissing the petition for the writ, it did not
operate to effectuate such appeal for the reason that it was not filed within the
time specified in the rule.
The notice of appeal filed in this case did not make any reference to the final
order dismissing the petition for the writ. It expressly stated that the appeal was
taken 'from the order on motion of plaintiff to reconsider motion entered in this
action on January 25, 1956, and from a communication directed to Clerk, U.S.
District Court for Wyoming by Honorable Judge T. Blake Kennedy, retired, * *
* stating that he will make no further orders in this case * * *.' A direct appeal
will not lie from a post-judgment order denying a motion to reconsider earlier
action taken on a postjudgment motion. American Fire & Casualty Co. v.
Allison, 5 Cir., 189 F.2d 255; Vaughan v. City Bank & Trust Co., Natchez,
Miss., 5 Cir., 218 F.2d 802, certiorari denied 350 U.S. 832, 76 S.Ct. 67. Neither
will a direct appeal lie from an announced declination to enter further postjudgment orders in a case. And a dissatisfied suitor may not maintain a direct
appeal from an order denying requested disqualification of the judge. Skirvin v.
Mesta, 10 Cir., 141 F.2d 668.