Before MAJOR, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
The defendants-appellees have filed a motion in this Court to grant leave to the defendants to docket the appeal taken in this case by the plaintiff by a notice of appeal filed in the District Court January 6, 1950; and to then dismiss the appeal on the ground that the appeal was not taken in time and on the further ground that the record on appeal was not filed in this Court within the allotted time. The plaintiff-appellant on March 29, 1950, filed an answer to defendants'-appellees' motion and filed a counter-motion asking the Court to extend for thirty days the time for filing the record on appeal in this case.
In plaintiff's action for damages for false arrest, the jury returned a verdict for defendants on October 31, 1949. On the same day the District Court entered a judgment for the defendants. The last sentence of the entry is as follows:
"Whereupon the plaintiff by his counsel enters his motion orally for a new trial and it is
"Ordered that said motion be and it is hereby set for hearing on December 9, 1949, at 2 o'clock p.m."
The defendants state that on that date plaintiff's counsel merely requested the Court to set for hearing a motion for a new trial, whereupon the Court fixed December 9, 1949, as the date for such hearing.
It is admitted that no written motion for a new trial was at any time filed or served by the plaintiff. Nor does the record show any reasons assigned for a new trial.
On December 9th a brief hearing on the motion for a new trial was held, at which time the attorney for the defendants objected to the Court that he had not seen the motion for a new trial. To this the Court replied: "He does not have to make any formal motion for a new trial as yet."
On the same day the Court entered an order denying the motion.
On January 6, 1950, the plaintiff filed his notice of appeal. On February 15, within the forty day period, plaintiff filed in the District Court his written motion for an extension of the time for filing the record on appeal. This motion was not granted. Subsequent to that time the plaintiff-appellant took no further steps in the matter until March 29, when his counter-motion and his answer to the defendants' motion were filed in this Court. No record has yet been filed in this Court.
The defendants contend that Rule 59 of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires the filing and service of a written motion for a new trial; that since no such motion was filed or served by the plaintiff, the time for taking his appeal was not tolled and consequently expired November 30, 1949, thirty days after the entry of the judgment.
Rule 7(b) of the Federal Rules of Civil Procedure provides that all applications to the Court for orders shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the ground therefor, and shall set forth the relief or order sought.
Rule 59 provides that in an action in which there has been a trial by jury a new trial may be granted to a party for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States, and that such a motion ...