Smilanich v. Bonanza Air Lines, Inc.

OPINION Per Curiam: This matter is before us on motion to dismiss the appeal upon the ground that it was not taken within 30 days of judgment as provided by Rule 73(a) N.R.C.P. Summary judgment in favor of respondent was entered by the trial court on April 25, 1955. Notice of *11 that judgment was served on appellant April 26, 1955. On May 18, 1955 appellant filed a motion for relief from final judgment under Rule 60 (b) N.R.C.P. On June 24, 1955 the motion was denied by order of the trial court. Notice of appeal from judgment and order was filed July 25, 1955. Clearly the appeal from summary judgment was not taken within the time prescribed. Appellant contends that the filing of the motion for relief from judgment suspended the running of time for appeal until after disposition of such motion. Rule 73(a) specifies the motions which are to have this effect. A motion under Rule 60 (b) is not included. Rule 60 (b) specifically states “a motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.” The motion, then, did not terminate or suspend the running of time for appeal from summary judgment and that appeal has not been taken within the time provided. See 6 Moore’s F.P., 123, sec. 54.12(2). The appeal from the order denying relief from judgment was taken within 30 days. It is conceded that the order is an appealable order. Greenspahn v. Seagram & Sons, 2 Cir., 186 F.2d 616; See 7 Moore’s F.P., 341, sec. 60.30(3). The appeal from the summary judgment is hereby dismissed. Motion to dismiss the appeal from order denying relief from judgment is hereby denied. Appellant shall have 15 days from date hereof within which to file opening brief upon his appeal from said order.