Norman P. Calhoun, and Viola E. Calhoun v. United States

The only issue before this court at this time is the timeliness of Calhoun’s appeal. This opinion arises in response to the United States’ motion to dismiss Calhoun’s appeal as untimely and to the court’s sua sponte consideration of the requirements of Fed.R.App.P. 4(a)(4) and (6). For the reasons set forth below, we hold that the appeal was timely and deny the motion to dismiss.

FACTS

The facts relevant to our disposition of the motion begin with the date of entry of final judgment in this action, July 10, 1979. Ten days later, on July 20, 1979, Calhoun served the United States with a motion to correct judgment. This motion was filed in the district court on July 23, 1979, a Monday.

On August 27, 1979, there was a hearing on Calhoun’s post-judgment motion. A document entitled “Minutes of the Court” shows that proceedings were held on that date and that the “[mjotion [was] argued and ordered denied.” This document was signed by the deputy clerk, is referenced as docket control number 190, but contains no filing or other stamp of the district court. The district court docket reflects the following notation:

The docket gives no indication that notice of this action was mailed to…