8, APPEAL-TIME FOR TAKING SUSPENSION BY PETITION FOR REHEARING.

"The general rule is that the time for taking an appeal is suspended by a seasonably filed motion for new trial or petition for rehearing."

9. SAME-SAME-SAME.

In regard to the ruling in Bowman v. Loperena, 311 U. S. 262, 266, and Pfister v. Finance Corp., 317 U. S. 144, that an unseasonably filed motion for rehearing which is considered on its merits suspends the time for taking an appeal Held that both these cases were suits in bankruptcy, and the statements of the court were based on the distinctive nature of bankruptcy proceedings. 10. SAME-SAME-SAME.

"We think that these bankruptcy cases were not intended to destroy the well-established principle that a party may not avoid the effect of a mandatory rule or statute limiting the time, by filing late a motion for rehearing, even where the motion is considered on its merits."

11. SAME-SAME-SAME.

"Since motions for new trials and petitions for rehearing suspend the time for appeal because they deprive the judgment of finality, Zimmern v. U. S., 298 U. S. 167, it follows that when a court loses its jurisdiction to entertain a motion for new trial or petition for rehearing action by it cannot deprive the judgment of finality, and so cannot suspend the time for taking an appeal.” 12. FEDERAL RULES OF CIVIL PROCEDURE-RULES 59 and 6-(b).

Held that the purpose of rule 6-(b) of the Federal Rules of Civil Procedure, which forbids the court to enlarge the time for taking any action under rule 59, was to divest the court of jurisdiction to entertain a motion for rehearing filed out of time.

13. SAME RULES 59, 6–(b), 6~(c).

"Rule 6-(c) now abolishes the effect of the expiration of the term on the power of the court to act, rule 59-(b) provides a definite time within which a motion for new trial may be made, and rule 6-(b) forbids the court to enlarge that time. If it were not thereby intended to make the running of that definite time as conclusive on the power of the court as was formerly the expiration of the term, there would be no limit on the power of the court to act and no finality when it did act. A construction which would empower the court to hear motions long out of time would destroy the rule, for by the very act of hearing, prohibited-extensions could effectively be granted."

14. SAME RULE 59-(b)-MOTION FOR REHEARING.

Held that upon dismissal by the district court of the complaint filed by Safeway against the Commissioner and Southern, Safeway had, under rule 59-(b) of the Federal Rules of Civil Procedure, only ten days in which to apply for a rehearing.

15. APPEAL-TIME FOR TAKING SUSPENSION BY PETITION FOR REHEARING,

"No application having been made within ten days, the judgment became final and the subsequent filing of a motion did not clothe the court with new jurisdiction nor suspend the time for taking an appeal."

APPEAL from the District Court of the United States for the District of Columbia. Appeal dismissed.

MILLER, A. J., dissenting.

Mr. A. W. Murray (Mr. Eugene E. Stevens of counsel) for Safeway Stores, Incorporated.

Mr. W. W. Cochran and Mr. R. F. Whitehead for the Commissioner of Patents. Before GRONER, Chief Justice, MILLER, VINSON and EDGERTON, Associate Justices, and EICHER, Chief Justice of the District Court of the United States for the District of Columbia.

GRONER, C. J.:

This is a motion filed by Coe, Commissioner of Patents, to dismiss an appeal to this court taken by Safeway Stores, Incorporated. The essential facts are these: Southern Independent Oil and Refining Company, Inc., filed in the Patent Office an application for registration of a trade-mark for gasoline, oils, and greases. Safeway filed notice of opposition. The Examiner of Interferences dismissed the notice, and the Commissioner affirmed. Safeway then filed a complaint in the district court against the Commissioner and Southern, praying that the Commissioner be enjoined from issuing the registration. The Commissioner moved to dismiss on two grounds: (1) that he was not a proper party to the action, and (2) that the action. could not proceed against him in the absence of a necessary party, the Southern Independent Oil and Refining Company, Inc. The motion was sustained and the complaint dismissed October 17, 1941.

November 17, 1941, Safeway filed a motion for rehearing,' which was considered and denied January 17, 1942. February 14, 1942, Safeway gave notice of appeal to this court. July 6, 1942, the Commissioner filed a motion to dismiss the appeal on the grounds that the order of January 17, 1942, was not appealable, and that the time for taking an appeal from the order of October 17, 1941, dismissing the complaint had run.

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* * * 99

[1] Safeway's notice of appeal states that it "hereby appeals * from the judgment of this court entered the 17th day of January 1942 But the order of that date was one denying a motion for rehearing, and it is settled that no appeal lies from such an order. Restifo v. Hartig, 61 App. D. C. 252, 61 F. (2d) 404; International Bank v. Securities Corp., 59 App. D. C. 72, 32 F. (2d) 968.

However, treating the appeal as one from the dismissal order of October 17, 1941, as we may, U. S. v. Ellicott, 233 U. S. 524, 539, the question presented is whether the filing and consideration of the motion for rehearing suspended the running of time for appeal.2 If it did, the appeal was timely and the motion to dismiss should be overruled.

and to vacate the Order

dis

1 The motion was "for rehearing missing the complaint" on the ground that the dismissal was contrary to the subsequent holding of this court in Tomlinson of High Point v. Coe, 74 App. D. C. 364, 123 F. (2d) 65, 535 O. G. 211. This motion was permitted to be filed, considered by the court, and the rehearing denied.

Rule 10 of this court requires the appeal to be taken within 30 days.

564904-447

Rule 59-(b) of the Federal Rules of Civil Procedure provides that a motion for a new trial shall be served not later than ten days after the entry of judgment, unless the ground of the motion is newly discovered evidence, and rule 6-(b) provides that the court may not enlarge the period for taking any action under rule 59, or for taking an appeal as provided by law, with an exception not here relevant. Since the motion for rehearing in the instant case was not filed seasonably under these rules, the Commissioner argues that its filing and consideration did not toll the time for taking the appeal.

[2] Safeway, however, first contends that its motion was not one for a new trial under rule 59 and that that rule has no application. This, we think, is incorrect. The rule itself (59-(a)) states that— A new trial may be granted in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States.

*

*

The Advisory Committee, in their notes, say:

This rule represents an amalgamation of the petition for rehearing of Equity Rule 69 * * * and the motion for new trial.

And under Equity Rule 69 rehearings were granted "only upon such grounds as would authorize a new trial in an action at law." Sheeler v. Alexander, 211 Fed. 544, 547. Obviously, therefore, a petition for rehearing is, under the rules, in all respects the same as a motion for a new trial. Penn Sportservice v. Goldstein, 35 F. Supp. 706. See also Fraser v. Doing, 76 U. S. App. D. C. 111, 130 F. (2d) 617; Nachod v. Automatic Signal Corp., 26 F. Supp. 418.

[3] [4] There can be no question that the original order of the district court was not preliminary and interlocutory, but final and appealable. It was a complete and definitive disposition of the cause before the court. The only provisions in the rules for the modification or vacation of such an order are found in rules 59 and 60. The latter is clearly inapplicable. Paragraph (a) provides for the correction of clerical mistakes, paragraph (b) for the relief of a party from his mistake, inadvertence, surprise, or excusable neglect. A change in the law by a subsequent decision of a higher court is neither a clerical mistake nor the mistake of a party. Nachod v. Automatic Signal Corp., 32 F. Supp. 588.

[5] [6] Paragraph (b) is qualified by the following language:

This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, * a judgment obtained against a defendant not actually personally notified.

Obviously the second qualification is inapplicable. As for the first, in Fraser v. Doing, supra, we said that its purpose was to preserve, without expanding, the substance of the bill of review. Under the old equity procedure the bill of review served substantially the

same purpose after term as the petition for rehearing served during term and consequently would not lie until the time for filing a petition for rehearing had passed. Fraser v. Doing, supra, cite: Moore, Federal Practice (1938), § 59.02. But the grounds that would sustain a bill of review were more limited than those that would sustain a petition for rehearing. Thus a subsequent decision of a higher court changing the law would lay the foundation for a petition for rehearing, Simmons Co. v. Grier Bros., 258 U. S. 82, 312 O. G. 826, but would not lay the foundation for a bill of review. Scotten v. Littlefield, 235 U. S. 407; Simmons v. Grier, supra; Swift v. Parmenter, 22 F. (2d) 142. See also Frederick der Grosse, 37 F. (2d) 354 (libel of review). Since such a subsequent decision is precisely the ground of the motion made in this case, it follows that it cannot, and it is not alleged that it can, be treated as a bill of review.

[7] In this view the present motion must be considered as addressed to the exercise of the power of the trial court under rule 59. That rule is applicable to what were formerly petitions for rehearing in equity. In Atchison, Topeka & Santa Fe Ry. v. U. S., 284 U. S. 248, 260, the Supreme Court said that a petition for rehearing directs attention

to matters said to have been overlooked or mistakenly conceived in the original decision and thus invites a reconsideration upon the record upon which that decision rested.

Whatever it may be designated, that is what the motion here does. If this is a correct statement of the purpose and effect of the new rules, it follows that the motion, not having been served within ten days after the entry of judgment, was too late, and that the appeal from the order of dismissal entered October 17, 1941, not having been taken until February 14, 1942, was likewise too late, unless, as Safeway contends, the order of dismissal was suspended when the motion for rehearing was allowed and considered by the court.

[8] [9] Unquestionably, the general rule is that the time for taking an appeal is suspended by a seasonably filed motion for new trial or petition for rehearing. Morse v. U. S., 270 U. S. 151, 154. In that case the Court said:

The suspension of the running of the period limited for the allowance of an appeal, after a judgment has been entered, depends upon the due and seasonable filing of the motion for a new trial or the petition for rehearing.

It is argued, however, as has been seen, that an unseasonably filed motion which is considered on its merits also suspends the time. It is true that this has been said recently in two cases. Bowman v. Loperena, 311 U. S. 262, 266; Pfister v. Finance Corp., 317 U. S. 144. In the former the Court said:

where the court allows the filing [of an untimely petition for rebearing] and, after considering the merits, denies the petition, the judgment of

the court as originally entered does not become final until such denial, and the time for appeal runs from the date thereof.

The latter confirms this rule but points out that it applies only where the issues of the original order are actually reexamined by the court. Where they are not so reexamined and the court merely considers whether the petition sets out grounds for opening the original order and determines that no grounds are shown, the time for review of the original order is not enlarged. But this latter contingency is one we are not concerned with here, since it sufficiently appears from the order of the court, when considered with the petition, that the ground assigned was an error in law in the original decree and that that decree was reexamined. If, therefore, the rule to be applied here is that stated in the Loperena and Pfister cases, Safeway's appeal was in time.

But both the Loperena and Pfister cases were suits in bankruptcy, and the statements of the court were based, we think, on the distinctive nature of bankruptcy proceedings. This conclusion is supported by Wayne U. Gas Co. v. Owens, 300 U. S. 131, 136, which applied a similar rule and upon which both later cases relied. That, too, was a bankruptcy case in which an untimely petition for rehearing was considered on its merits. In holding that the time for appeal was thereby suspended, the Court said:

Though a court of bankruptcy sits continuously and has no terms, respondents urge that, as courts of bankruptcy are courts of equity, the rules applicable to the rehearing of a suit in equity should be applied in bankruptcy cases, and as it appears the term of the district court expired April 20, 1936, the court had lost its power to disturb the order of March 2d. A court of equity may grant a rehearing, and vacate, alter, or amend its decree, after an appeal has been perfected and after the time for appeal has expired, but not after expiration of the term at which the decree was entered. It is true the bankruptcy court applies the doctrines of equity, but the fact that such a court has no terms, and sits continuously, renders inapplicable the rules with respect to the want of power in a court of equity to vacate a decree after the term at which it was entered has ended.

[10] Two other cases are cited in the Loperena case, Voorhees v. Noye Co., 151 U. S. 135, and Gypsy Oil Co. v. Escoe, 275 U. S. 498. The former holds no more than that a timely motion for rehearing can properly be considered and disposed of in a new term. The latter is authority only for the proposition that if a timely motion for leave to file a second petition for rehearing is granted and the petition is accordingly entertained by the court, the time for application for certiorari begins to run from the day when the court denies the second petition. Considered in their setting then, we think that these bankruptcy cases were not intended to destroy the well established principle that a party may not avoid the effect of a