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Emery H. Harlan, Dba East Bay Appliance Sales & Service Co. v. Graybar Electric Co., Inc.

Emery H. HARLAN, Dba East Bay Appliance Sales & Service Co., Appellant, v. GRAYBAR ELECTRIC CO., Inc., Appellee

Harlan v. Graybar Elec. Co., 442 F.2d 425 (9th Cir. 1971)
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Court
Court of Appeals for the Ninth Circuit · U.S. Courts of Appeals
Decided
May 7, 1971
Docket
No. 23920_1
Judges
Koelsch, Carter, Hufstedler
Citations
442 F.2d 42515 Fed. R. Serv. 2d 1101971 U.S. App. LEXIS 10337

Opinion — Per Curiam

PER CURIAM:

The threshold question, the answer to which is dispositive of this appeal, is whether the facts set out in the affidavits supporting plaintiff-appellant’s motion in the District Court to file, out of time, a notice of appeal from the civil judgment entered against him show “excusable neglect” within the meaning of Fed.R.App.P. 4(a).

We agree with the District Court that they do not.

Notice to appellant’s counsel of the entry of the judgment constituted notice to appellant; hence, he may not assert that he did not know and therefore that his failure to act was “excusable.” Howard v. Local 74, Wood, Wire and Metal Lathers International et al., 208 F.2d 930 *426 (7th Cir. 1953) (explicating Rule 73(a) Fed.R.Civ.P. — the predecessor to Fed.R. App.P. 4(a) which latter rule according to the Advisory Committee’s note to Rule 4 is “derived from Fed.R.Civ.P. 73(a) without any change of substance”). And although the fact that appellant’s counsel “misread” the rule to allow sixty not thirty days in which to file the notice does show neglect, it certainly does not make the neglect “excusable.”

Affirmed.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

Cited by 20 cases

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1975: 11976: 11977: 11978: 11979: 21981: 21982: 31983: 11984: 11986: 11989: 11990: 21991: 11994: 12007: 119752026peak 1982 · 3

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Howard v. Local 74, Wood, Wire & Metal Lathers Int'l, 208 F.2d 930 (7th Cir. 1953) 19

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