Mondakota Gas Co. v. Montana-Dakota Utilities Co.

A motion to dismiss the appeal is before us.

Formal judgment was signed and entered in the docket of the District Court on November 8, 1951.

Notice of entry of the formal judgment was mailed to counsel for appellant on November 8, 1951.

On December 3, 1951 a notice of appeal from .the formal judgment of November 8, 1951 was received by the Clerk of the District Court but was not accompanied by the filing fee of $5.00; hence, the notice of appeal was not accepted for filing and was not then filed. The required filing fee was received by the Clerk on December 12, 1951 and the notice of appeal was on said date duly filed. Section 2107, 28 U.S.C.A., provides: “Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree. * * * »

No extension of time was given by the District Court pursuant to Rule 73(a), Fed. Rules Civ.Proc. 28 U.S.C.A.

Filing of notice of appeal within the required time is jurisdictional. The Clerk of the District Court was under no…