MULVANEY v. LEVER BROS. CO., 158 F.2d 956

PER CURIAM. It appearing from the certificate of the Clerk of the United States District Court for the Southern District of Ohio, Western Division, attached to the motion of Lever Brothers Company, defendant in that court in Civil Action No. 879 brought by Thomas M.

Mulvaney, that on May 31, 1946, judgment was entered in favor of the defendant; that on August 29, 1946, notice of appeal was filed by the plaintiff; that on October ,5, 1946, an order was entered enlarging the time for docketing the appeal in this court to ninety days from the date of the filing of the notice of appeal, and that no subsequent proceedings were had in the cause; And it appearing, further, that on December 5, 1946, Lever Brothers Company filed with the Clerk of this Court a motion to docket this case and to dismiss the appeal as provided in Rule 19 of this Court and Rule 75(

j) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following

section 723c; and that on December 11, 1946, Thomas M.

Mulvaney, plaintiff below, filed with the Clerk of this Court a memorandum opposing the motion of the defendant below to docket and dismiss the appeal in which he moved this court that sixty days’ additional time be granted to the plaintiff to file and perfect a record on appeal, to which motion Lever Brothers Company, defendant below, filed on December 12, 1946, a memorandum opposing Mulvaney’s motion for filing record on appeal and for other relief; And this court, after due consideration being of opinion that the plaintiff below has failed to comply with the above cited Rule of Civil Procedure and the pertinent rule of this court, also cited, supra, and has failed to present any showing whatever ojf “excusable neglect” within the purview of Rule 6(

b) of the Rules of Civil Procedure [See Maghan v. Young, 80 U.S.App.D.C. 395, 154 F.2d 13] ; The motion of the plaintiff below, Thomas M. Mulvaney, for additional time to file record on appeal and for the other relief prayed in his memorandum filed December 12, 1946, is denied; and the motion of the defendant below, Lever Brothers Company, to docket the case and dismiss the appeal is granted; and the Clerk of this Court is accordingly ordered to docket the case, whereupon the appeal is ordered to be dismissed.