HUTCHESON, Circuit Judge.
What is in question here is whether though no notice of appeal was actually filed in time, the filing with the Clerk before the
This is the record. On October 27, 1938, judgment went against appellant. On December 22, 1938, he procured from appellee her written acknowledgment of service of notice of appeal and of designation of record on appeal and her entry of appearance,
"To Hon. Fred H. Montgomery, of Attorneys for Mrs. Ivy G. Hill, Defendant, Clarksdale, Miss.
"Notice is hereby given that C. H. Crump, plaintiff, above named, hereby appeals to the Circuit Court of Appeals for the Fifth Circuit, from the final judgment against him entered in the above action.
"Filed: This 21st day of February, 1939. Hubert D. Stephens, Jr., Clerk, By M. A. Cook, D. C."
Appellee insists that the notice of appeal required by Rule 73 has but taken the place of the allowance of appeal formerly required and that, as under the former practice, application for and allowance of an appeal within the three months was jurisdictional, Kiehn v. Dodge County, 8 Cir., 19 F.2d 503, Robie v. Hart, Schaffner & Marx, 8 Cir., 40 F.2d 871, Donaldson v. Baltimore Acceptance Corp., 3 Cir., 38 F.2d 215, Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780, so the filing of the notice of appeal is jurisdictional here.
Appellant on his part insists that since under the new Rules no application to or order of the District Judge is required for an appeal, but an appeal is a matter of right, and only the filing of notice is necessary to start it, it will not do to press the analogy here between appeal by notice, and appeal by application and allowance, to the point of insisting that one is the equivalent of the other, and that as the application for, and the granting of, an appeal cannot be waived, the filing of notice under Rule 73 cannot be. Admitting that the actual filing of notice is jurisdictional, where the appellee had not as here waived the notice and entered her appearance, he insists that what has occurred here is the complete equivalent of such filing. He points out that in addition to her waiver of service of notice of appeal and entry of appearance, which appellant duly and timely filed, appellee has actually joined in the perfection of the appeal under the Rules by filing, on her part and within time, a designation of record contents.
We agree with appellant. It is true that Rule 73 does specifically provide that the only thing necessary to be done to perfect an appeal is to file notice thereof with the Clerk, making it the duty of the Clerk to see that notice thereof is served, and that a literal compliance with the Rule requires timely filing of the notice with the Clerk. The reason for the Rule, however, to set the appeal in motion by mere notice without judicial action, makes it quite clear we think that the appellant, when he procured from appellee and filed, her waiver of notice, her
If the appellant had not by filing his notice of appeal in February, when too late to be effective, called attention to the technical point now urged, we think it would hardly have occurred to appellee or to anyone else that what appellee and appellant did to perfect the appeal had not been effective to do so. The ill-advised late filing of that notice can have no effect upon the jurisdiction of this Court already established by the prior proceedings. It must be disregarded, as surplusage, its filing as a superfluous act.
Long before its filing and well within the time fixed by the Rules, appellant, in complete accordance with their spirit and in substantial accordance with their letter, had filed with the Clerk a complete equivalent of a notice of appeal, appellee's waiver of service of such notice and of designation of record contents, and her appearance to the appeal. By Rule 1 it is provided that the rules shall be construed to secure the just, speedy, and inexpensive determination of every action, and by Rule 61 that the Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
We think that it was substantial compliance with the letter of Rule 73 to file, instead of the notice of appeal, the waiver of service thereof and appearance thereto, but if this ruling does violate its letter, it certainly accords with and gives effect to its substance and spirit. Indeed, it would we think be an exhibition of unsound reasoning and a clear abuse of judicial discretion for us to start the Rule off barnacled with the rigid and rigorous holding appellee's motion seeks.
The motion to dismiss is denied.