Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Farm Credit Bank of Spokane v. Duvall

*fn* submitted: April 27, 1993.

FARM CREDIT BANK OF SPOKANE, A CORPORATION, SUCCESSOR BY MERGER TO THE FEDERAL LAND BANK OF SPOKANE, PLAINTIFF-APPELLEE,
v.
SAMUEL W. DUVALL AND ROBERTA Z. DUVALL, HUSBAND AND WIFE, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the District of Montana. D.C. No. CV-88-177-JFB. James F. Battin, Chief Judge, Presiding

Before: Browning, Kozinski and Rymer, Circuit Judges.

MEMORANDUM

Samuel and Roberta Duvall appeal pro se the district court's judgment of foreclosure and order of sale on their real property. The Duvalls filed their notice of appeal 95 days after entry of the judgment. We dismiss for lack of jurisdiction.

A timely notice of appeal is mandatory and jurisdictional. Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988). Federal Rule of Appellate Procedure 4(a)(1) provides that in a civil case where the United States is a party, a notice of appeal must be filed with the clerk of the district court within sixty days of entry of the order appealed from. Here, judgment was entered on June 15, 1992. Because the United States, acting through the Farmers Home Administration, was a party to this action, the Duvalls had sixty days from that date to file their notice of appeal. Accordingly, their notice of appeal filed on September 18, thirty five days after the 60-day appeal period had expired, was untimely. See Fed. R. App. P. 4(a)(1).

The district court may extend the time to appeal if a party (1) moves for an extension of time no later than thirty days after the expiration of the original appeal period; and (2) makes a sufficient showing of excusable neglect for not meeting the original deadline. Fed. R. App. P. 4(a)(5); Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986). Here, the Duvalls cannot meet the first requirement because they failed to seek an extension of time in the district court.*fn1 A party's "failure to make a timely motion to file a notice of appeal out of time prohibits either the district court or this court from reviving its right to appeal." Alaska Limestone Corp, 799 F.2d at 1411. In such instances, we "can neither grant an extension nor remand to the district court for a determination of whether an extension was warranted."*fn2 Hoag Ranches v. Stockton Prod. Credit Ass'n (In re Hoag Ranches), 846 F.2d 1225, 1229 (9th Cir. 1988).

DISMISSED.

Disposition

DISMISSE ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.