FONG v. JAMES W. GLOVER, Limited

United States Court of Appeals for the Ninth Circuit1952-06-24No. No. 13432

197 F.2d 710

Summary · law.co

Holding. The court affirmed that Federal Rules of Civil Procedure 73-76 governed appeals from the territorial Supreme Court in civil actions, rejecting the older procedural practice. The appeal was dismissed for the appellant's failure to file a record on appeal and docket the case within the prescribed forty-day period.

Leonard Fong, the Auditor of Honolulu, appealed a territorial Supreme Court decision that had affirmed a writ of mandamus issued against him in favor of James W. Glover, Limited. Fong initiated his appeal following procedures from an older practice, filing a petition for appeal and obtaining an assignment of errors and a citation on appeal. The court addressed a threshold question about which procedural rules governed appeals from the territorial Supreme Court.

The court determined that Federal Rules of Civil Procedure 73-76 had been adopted as part of the court's rules for all civil appeals, including those from the territorial Supreme Court, when the rules were capable of being applied. Under those federal rules, the procedures Fong followed were unnecessary; instead, he was required to file a record on appeal and docket the case within forty days of the citation being issued. Fong failed to take these required steps within the deadline and never sought an extension. Although the appellee ultimately docketed the appeal after the period expired, the court found Fong's noncompliance provided grounds for dismissal.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Applicability of Federal Rules of Civil Procedure to appeals from territorial Supreme Court
Proper procedures for taking an appeal under Federal Rules 73-76
Whether failure to comply with appellate procedural deadlines requires dismissal

Procedural posture

Fong appealed to the circuit court from a territorial Supreme Court judgment affirming a writ of mandamus, and the appellee moved to dismiss for noncompliance with appellate procedural requirements.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

MATHEWS, Circuit Judge.

From a judgment of the Supreme Court of the Territory of Hawaii affirming a peremptory writ of mandamus issued by a circuit court of the Territory, appellant, Leonard K. Fong, Auditor of the City and County of Honolulu, has appealed to this court.

The value in controversy exceeds $5,000, exclusive of interest and costs. This court, therefore, has jurisdiction of the appeal.

Appellant took the appeal by filing a notice of appeal on April 23, 1952. He also filed a petition for appeal and an assignment of errors, obtained an order allowing the appeal and caused a citation on appeal to be issued and served on appellee, James W. Glover, Limited, apparently upon the theory that Rules 73-76 of the Federal Rules of Civil Procedure were not applicable to appeals from the Supreme Court of the Territory, and that therefore such appeals were governed by the old practice— the practice requiring petitions for appeal, assignments of errors, orders allowing appeal and citations on appeal. We reject that theory. Although Rules 73-76 of the Federal Rules of Civil Procedure were not, by their own terms, made applicable to appeals from the Supreme Court of the Territory, they were adopted as part of our Rules on December 19, 1938, in and by, and to the extent indicated in, the following paragraph of our Rules (the paragraph immediately preceding our Rule 1) :

“The Federal Rules of Civil Procedure, whenever applicable, are hereby adopted as part of the Rules of this court with respect to appeals in actions of a civil nature.”

As used in the above quoted paragraph, “applicable” means capable of being applied; “appeals” include appeals from the Supreme Court of the Territory; and “actions of a civil nature” include mandamus proceedings. Rules 73-76 of the Federal Rules of Civil Procedure are capable of being applied to appeals from the Supreme Court of the Territory in all actions of a civil nature, including mandamus proceedings. Therefore, in and by the above quoted paragraph, Rules 73-76 were adopted as part of our Rules with respect to such appeals. Such adoption was a valid exercise of our rule-making power under 28 U.S. C.A. § 2071. Therefore appellant’s appeal was and is governed, not by the old practice, but by Rules 73-76.

Under Rules 73-76, petitions for appeal, assignments of errors, orders allowing appeal and citations on appeal are unnecessary. Appellant could and did take his appeal by filing a notice of appeal. However, to secure a review of the judgment appealed from, appellant was required to take further steps, including those specified in subdivision (g) of Rule 73. Thus appellant was required to file or cause to be filed with this court a record on appeal and to docket the appeal or cause it to be docketed in this court within the 40-day period prescribed in subdivision (g) or a valid extension thereof. There was no extension of the 40-day period. Appellant did not file or cause to be filed a record on appeal or docket the appeal or cause it to be docketed within the 40-day period or at all.

After the 40-day period expired, appellee caused the appeal to be docketed and has moved to dismiss it because of appellant’s failure to comply with subdivision (g) of Rulé 73. No valid excuse for the failure is shown. The failure does not affect the validity of the appeal, but (no remedy being provided in Rule 73) is ground for such action as we deem appropriate, which may include dismissal of the appeal. The action we.deem appropriate is dismissal of the appeal.

Appeal dismissed.

. James W. Glover, Ltd. v. Fong, - Haw.-.

. See 28 U.S.O.A. §§ 1293, 1294(5).

. See 28 U.S.O.A. § 2107 and subdivisions (a) and (b) of Rule 73 of the Federal Rules of Civil Procedure, 28 U.S.O.A.

. The citation was signed on May 3, 1952, and was made returnable 40 days from that day. Thus June 12, 1952, was designated as the return day.

. Appeals to the Supreme Court of the United States are governed by the old practice. See Rules 9-11 of that court’s Rules and Rule 72 of the Federal Rules of Civil Procedure.

. Cf. United States v. Cia Luz Stearica, 9 Cir., 181 F.2d 695.

. See subdivisions (a) and (b) of Rule 73.

. Under tbe old practice — tbe practice governing appeals to tbe Supreme Court of tbe United States — appellant would . bave been required to file a record on appeal and docket tbe appeal witbin tbe 40-day period prescribed in tbe citation or a valid extension thereof. See Rules 10 and 11 of tbe Rules of tbe Supreme Court of tbe United States, 28 U.S.C.A. There was no extension of that period. Appellant did not file a record on appeal or docket tbe appeal witbin that period or at all.

. See subdivision (a) of Rule 73. Under tbe old practice, appellee could have docketed tbe appeal and bad it dismissed because of appellant’s failure to file a record on appeal and docket tbe appeal witbin tbe 40-day period prescribed in tbe citation. See Rule 11 of the Rules of tbe Supreme Court of tbe United States.

. Cf. United States v. Gallagher, 9 Cir., 151 F.2d 556; Tucker Products Corp. v. Helms, 9 Cir., 171 F.2d 126; United States v. Stanton, 9 Cir., 172 F.2d 642; United States v. Krause, 9 Cir., 197 F.2d 329.