Notes on 28 U.S.C. § 2107 : US Code - Notes

Search Notes on 28 U.S.C. § 2107 : US Code - Notes

(June 25, 1948, ch. 646, 62 Stat. 963; May 24, 1949, ch. 139, Secs.
107, 108, 63 Stat. 104; Pub. L. 95-598, title II, Sec. 248, Nov. 6,
1978, 92 Stat. 2672; Pub. L. 102-198, Sec. 12, Dec. 9, 1991, 105
Stat. 1627.)
HISTORICAL AND REVISION NOTES
1948 ACT
Based on title 28, U.S.C., 1940 ed., Secs. 227a, 230, and section
1142 of title 26, U.S.C., 1940 ed., Internal Revenue Code (Mar. 3,
1891, ch. 517, Sec. 11, 26 Stat. 829; Mar. 3, 1911, ch. 231, Sec.
129, 36 Stat. 1134; Feb. 13, 1925, ch. 229, Sec. 8(c), 43 Stat.
940; Feb. 28, 1927, ch. 228, 44 Stat. 1261; Jan. 31, 1928, ch. 14,
Sec. 1, 45 Stat. 54; Feb. 10, 1939, ch. 2, Sec. 1142, 53 Stat. 165;
Oct. 21, 1942, ch. 619, title V, Sec. 504(a), (c), 56 Stat. 957).
Section consolidates sections 227a and 230 of title 28, U.S.C.,
1940 ed., with section 1142 of title 26, U.S.C., 1940 ed., Internal
Revenue Code. Other provisions of such section 227a are
incorporated in section 1292 of this title.
Section 227a of title 28, U.S.C., 1940 ed., provided a time limit
of 30 days for appeals from patent-infringement decisions, and
section 230 of title 28, U.S.C., 1940 ed., permitted 3 months for
appeals generally. The revised section adopts the 30-day limit in
conformity with recommendations of members of the Judicial
Conference of the United States and proposed amendment to Rule 73
of the Federal Rules of Civil Procedure.
Section 1142 of title 26, U.S.C., 1940 ed., provided for 3 months
within which to petition for appeal from a decision of The Tax
Court. The second paragraph of the revised section reduces this to
60 days for reasons explained above. Other provisions of said
section 1142 making a distinction between decisions before and
after June 6, 1932, were omitted as executed.
Words "in an action, suit, or proceeding of a civil nature" were
added in view of Rule 37 of the Federal Rules of Criminal Procedure
prescribing a different limitation for criminal appeals.
Words "notice of appeal is filed" were substituted for provisions
of sections 230 of title 28, U.S.C., 1940 ed., and 1142 of title
26, U.S.C., 1940 ed., for petition and allowance of appeal in order
to eliminate the useless paper work involved in a pro forma
application for appeal and perfunctory allowance of the same. The
effect of the section is to require appeals to the courts of
appeals in all cases to be taken by filing notice of appeal. See
Rule 73(b) of Federal Rules of Civil Procedure.
The case of Mosier v. Federal Reserve Bank of New York, C.C.A.
1942, 132 F.2d 710, holds that the Federal Rules of Civil Procedure
changing the method of "taking" an appeal, do not affect the time
limitation prescribed by section 230 of title 28, U.S.C., 1940 ed.
Word "order" was added, in two places, after "judgment" so as to
make the section cover all appeals of which the courts of appeals
have jurisdiction, as set forth in section 1291 et seq. of this
title.
The last paragraph was added in conformity with section 48 of
title 11, U.S.C., 1940 ed., Bankruptcy, and other sections of that
title regulating appellate procedure in bankruptcy matters.
The third paragraph was inserted to conform to the existing
practice in Admiralty upon the recommendation of the Committee on
the Federal Courts of the New York County Lawyers Association.
The time for appeal to the Court of Customs and Patent Appeals in
patent and trade-mark cases is governed by section 89 of title 15,
U.S.C., 1940 ed., Commerce and Trade, and section 60 of title 35,
U.S.C., 1940 ed., Patents, and Rule 25 of the Rules of such court,
and, in customs cases, by section 2601 of this title.
Changes were made in phraseology.
SENATE REVISION AMENDMENT
By Senate amendment, all provisions relating to the Tax Court
were eliminated. Therefore, section 1142 of title 26, U.S.C.,
Internal Revenue Code, was not one of the sources of this section
as finally enacted. However, no change in the text of this section
was necessary. See 80th Congress Senate Report No. 1559.
1949 ACT
This amendment to section 2107 of title 28, U.S.C., restores the
former 15-day limitation of time within which to appeal from an
interlocutory order in admiralty.
This amendment eliminates as surplusage the words "in any such
action, suit or proceeding," from the fourth paragraph of section
2107 of title 28, U.S.C., and corrects a typographical error in the
same paragraph.
AMENDMENTS
1991 - Pub. L. 102-198 designated first and second pars. as
subsecs. (a) and (b), respectively, added subsec. (c), designated
fifth par. as subsec. (d), and struck out third and fourth pars.
which read as follows:
"In any action, suit or proceeding in admiralty, the notice of
appeal shall be filed within ninety days after the entry of the
order, judgment or decree appealed from, if it is a final decision,
and within fifteen days after its entry if it is an interlocutory
decree.
"The district court may extend the time for appeal not exceeding
thirty days from the expiration of the original time herein
prescribed, upon a showing of excusable neglect based on failure of
a party to learn of the entry of the judgment, order or decree."
1978 - Pub. L. 95-598 directed the amendment of section by
inserting "or the bankruptcy court" after "district court" and by
striking out the final paragraph, which amendment did not become
effective pursuant to section 402(b) of Pub. L. 95-598, as amended,
set out as an Effective Date note preceding section 101 of Title
11, Bankruptcy.
1949 - Act May 24, 1949, restored, in third par., the 15-day
limitation of time within which to appeal from an interlocutory
order in admiralty, and in fourth par., substituted "The district
court may" for "The district court, in any such action, suit, or
proceeding, may" and corrected spelling of "excusable".