Thomas Day Co. v. Doble Laboratories

Appeal herein was sued out October 25,. 1929, from a final decree “entered” May 27 or 28, 1929, and appellee moves dismissal thereof upon the ground that it was not taken within the statutory period (28 USCA § 230). Proper disposition of the motion turns on the effect to bo given to a petition for rehearing filed by appellant and the proceedings had in relation, thereto. By appellee the general rule is conceded to be that a petition for rehearing, if seasonably filed and entertained by the court, suspends the running of the time for appeal until a ruling thereon is made. But it contends that the-petition hero relied upon met neither of these qualifying conditions.

It seems that at the time the decree was entered there was a standing rule of the trial court (Rule 44) providing that “petitions for rehearing shall in all cases be made to the court either before the entry of * * * decree or within ten days after receiving notice thereof.” The rule further provided *52 that the petition must be filed with the clerk and served upon the adverse party; and the adverse party is given ten days after service in which to serve and-file a reply.

On May 27, 1928, counsel for both parties…