Knowles v. Board of Public Instruction of Leon County, FL Reply Brief for Appellant

    I n  t h e

lotted States (Eourt of Appeals
F oe the F ifth Circuit 

No. 26144

Christine F . K nowles,

B oard oe P ublic I nstruction of 
L eon County, F lorida, et al.,

Appellant,

Appellees.

REPLY BRIEF FOR APPELLANT

Jack Greenberg 
James M. Nabrit, III  
Conrad K . H arper 
W illiam L. R obinson 

10 Columbus Circle 
New York, New York 10019

E arl M. Johnson 
R eese Marshall

625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Appellant



I N D E X
A rgument page

This Court has Jurisdiction to Determine Appel­
lant’s Appeal from the District Court’s Order Dis­
missing Appellant’s Complaint ...............................  1

Conclusion ........ ........... ............................ .............. ..........  7

Certificate of Service ......... ............................................. . 8

Table of A uthorities
Cases:

Atlantic Coastline R. Co. v. Mims, 199 F.2d 582 (5th 
Cir. 1952) .................. ........................ ........................ . 6

Foman v. Davis, 371 U.S. 178 (1962) .............................. 4

Hoiness v. United States, 335 TT.S. 297 (1948) .............. . 3

State Farm, Mutual Automobile Ins. Co. v. Palmer,
225 F.2d 876 (9th Cir. 1955), rev’d per curiam 350 
TT.S. 944 (1956) ......... .......... .............. ...........................  3,6

United States v. Arizona, 206 F.2d 159 (9th Cir.), 
rev’d per curiam 346 TT.S. 907 (1953) .......................  3

United States v. Stromberg, 227 F.2d 903 (5th Cir. 
1955) ......................      6

Woodham v. American Cystoscope Co., 335 F.2d 551 
(5th Cir. 1964) .............. ........... .......... ...........................  6

Other A uthorities:

Federal Rules of Civil Procedure 73(a) ....................... 2

Federal Rules of Civil Procedure 73(b)  .................. 4



I n  t h e

In M  (tart of A^prals
F oe the F ifth Circuit 

No. 26144

Christine F . K nowles,
Appellant,

B oard op P ublic I nstruction of 
L eon County, F lorida, et al.,

Appellees.

REPLY BRIEF FOR APPELLANT

This brief is submitted on behalf of appellant in reply 
to the brief submitted by appellees.

ARGUMENT

This Court has Jurisdiction to Determine Appellant’ s 
Appeal from the District Court’s Order Dismissing Ap­
pellant’s Complaint.

On February 28, 1968, the district court entered an order 
rendering judgment for the defendants and dismissing 
appellant’s complaint (R.192-193). Appellant filed a mo­
tion for new trial on March 7, 1968 (R.193-195) which was 
denied on March 8, 1968 (R.195). On April 8, 1968, ap­
pellant filed a notice of appeal from the district court’s 
order dated March 8, 1968 denying* appellant’s motion for



2

new trial (R.196). The text of the notice of appeal is 
set out in the margin.1

Appellant’s notice of appeal was timely for appealing 
the district court’s order of February 28, 1968 because 
under the then applicable Federal Rules of Civil Proce­
dure 73(a), appellant’s timely motion for new trial in 
effect postponed the running of time for appeal until af­
ter the order denying the motion for new trial. Rule 73(a) 
provided in pertinent part that:

An appeal permitted by law from a district court to 
a court of appeals shall be taken by filing a notice of 
appeal with the district court within 30 days from the 
entry of the judgment appealed from. . . . The run­
ning of the time for appeal is terminated as to all 
parties by a timely motion made by any party pursu­
ant to any of the rules hereinafter enumerated, and 
the full time for appeal fixed in this subdivision com­
mences to run and is to be computed from the entry 
of any of the following orders made upon a timely 
motion under such rules: . . . denying a motion for 
new trial under Rule 59.

1 Notice op Appeal

(Number and title omitted) (Filed: April 8, 1968)
Notice is hereby given that the plaintiff-intervenor in the above 

styled cause, Christene Knowles, hereby appeals to the United 
States Court of Appeals for the 5th Circuit from the Order of 
the Court made and entered on the 8th day of March, 1968, deny­
ing Motion For New Trial.

Dated this 3rd day of April, 1968.
Johnson & Marshall 
By s / Reese Marshall

625 West Union Street 
Jacksonville, Florida 32202 

Leroy D. Clark
10 Columbus Circle 
New York, New York 10019



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Appellant’s notice of appeal was filed on April 8, 1968 
within 30 days from the denial of her motion for new 
trial on March 8, 1968.2

Appellant concedes the technical inaccuracy of her notice 
of appeal, which specified the denial of her motion for new 
trial as the judgment appealed from, instead of the order 
dismissing her complaint. However, appellant submits that 
her counsel’s oversight in drafting the notice of appeal 
does not deprive this court of jurisdiction to determine 
her appeal from the district court’s order dismissing her 
complaint.

As is shown below, the Supreme Court has held that 
the failure correctly to designate the judgment appealed 
from in the notice of appeal does not deprive appellate 
courts of jurisdiction to consider an appeal. State Farm 
Mutual Automobile Ins. Co. v. Palmer, 225 F.2d 876 (9th 
Cir. 1955), rev’d per curiam, 350 U.S. 944 (1956), decided 
the precise'issue involved in the instant case and, there­
fore, is binding on this court. In Palmer, the defendant 
moved for a new trial after entry of judgment. His mo­
tion for new trial was denied and he filed a notice of 
appeal from the denial of the motion, identifying it by 
date. The court of appeals dismissed the appeal holding 
that the order appealed from was a non-appealable order 
and the notice of appeal was not sufficient to give the 
court jurisdiction over the judgment on the merits. The 
Supreme Court summarily reversed citing Hoiness v. 
United States, 335 U.S. 297 (1948). Accord, United States 
v. Arizona, 206 F.2d 159 (9th Cir.), rev’d per curiam 346 
U.S. 907 (1953).

Hoiness involved a district court which, on August 5, 
1946, filed an order dismising a seaman’s libel action

2N.B. April 7, 1968 was a Sunday.



4

against the United States for lack of jurisdiction. On 
October 14, 1946, the district court filed Findings of Fact 
and Conclusions of Law and a decree. The seaman filed 
a notice of appeal, timely as to either order, from the 
order entered on October 14. The court of appeals dis­
missed the appeal holding that the first order was the 
final one and that the decree of October 14 was not ap­
pealable. The Supreme Court reversed. Finding it un­
necessary to determine which was the final order, the Court 
concluded:

And although the petition for appeal referred solely 
to the second order and not to the first, that defect 
was of such a technical nature that the Court of Ap­
peals should have disregarded it in accordance with 
the policy expressed by Congress in Eev. Stat. §954. 
28 USCA 1928 ed. §777, 8 FCA title 28, §777.

The mandate of that statute is for a court to dis­
regard niceties of form and to give judgment as the 
right of the cause shall appear to it. 335 U.S. at 300- 
301 (footnotes omitted).

In Foman v. Davis, 371 U.S. 178 (1962), the Supreme 
Court gave specific attention to the requirement of Rule 
73(b) Fed. R. Civ. P., that the notice of appeal must 
designate the judgment or part thereof appealed from. 
In Foman, the district court dismissed the complaint on 
December 19, 1960. On December 20, 1960, plaintiff filed 
motions to vacate the judgment and to amend the com­
plaint. January 17, 1961, plaintiff filed a notice of ap­
peal from the judgment of December 19, 1960. January 
23, 1961, the district court denied plaintiff’s motions to 
vacate and amend. January 26, 1961, plaintiff filed a no­
tice of appeal from the denial of the motions.

On appeal, the parties briefed and argued the merits of 
the dismissal of the complaint and the denial of plaintiff’s



motions. The court of appeals, sua sponte, dismissed the 
appeal insofar as taken from the judgment of December 
19, 1960 as prematurely taken because of the pending mo­
tions to vacate and amend. Treating the January 26, 1961 
notice of appeal solely as an appeal of the denial of plain­
tiff's motions, the. court of appeals affirmed the orders of 
the district court entered January 23, 1961 on the ground 
there was nothing in the record to show the circumstances 
before the district court in ruling on the motions and 
consequently no showing that the district court abused its 
discretion.

The Supreme Court reversed this narrow reading of the 
second notice of appeal holding that the court of appeals 
should have treated the appeal from the denial of the 
motions as an effective, although inept, attempt to appeal 
from the judgment sought to be vacated.

The defect in the second notice of appeal did not mis­
lead or prejudice the respondent. With both notices 
of appeal before it (even granting the asserted ineffec­
tiveness of the first), the Court o f Appeals should have 
treated the appeal from the denial of the motions as 
an effective, although inept, attempt to appeal from 
the judgment sought to be vacated. Taking the two 
notices and the appeal papers together, petitioner’s 
intention to seek review of both the dismissal and the 
denial of the motions was manifest. Not only did 
both parties brief and argue the merits of the earlier 
judgment on appeal, but petitioner’s statement of 
points on which she intended to rely on appeal, sub­
mitted to both respondent and the court pursuant , to 
rule, similarly demonstrated the intent to challenge the 
dismissal.

It is too late in the day and entirely contrary to the 
spirit of the Federal Rules of Civil Procedure for

5



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decisions on the merits to he avoided on the basis of 
such mere technicalities. “The Federal Rules reject 
the approach that pleading is a game of skill in which 
one misstep by counsel may be decisive to the outcome 
and accept the principle that the purpose of pleading 
is to facilitate a proper decision on the merits.” Con­
ley v. Gibson, 355 US 41, 48, 2 L ed 2d 80, 86, 78 S Ct 
99. The Rules themselves provide that they are to 
be construed “to secure the just, speedy, and inexpen­
sive determination of every action.” Rule 1. 371 U.S. 
at 181-182.

Consistent with the rulings of the Supreme Court, this 
Court has uniformly held that errors in designating the 
judgment appealed contained in a notice of appeal will not 
deprive a party of its right of appeal. Atlantic Coastline 
R. Co. v. Mims, 199 F.2d 582 (5th Cir. 1952); United States 
v. Stromberg, 227 F.2d 903 (5th Cir. 1955); Woodham v. 
American Cystoscope Co., 335 F.2d 551 (5th Cir. 1964). 
Thus, it is now well settled that a mistake in designating 
the judgment should not result in dismissal of the appeal 
as long as the intent to appeal from a specific judgment 
is clear from the record as a whole and the appellee is 
not prejudiced by the mistake.

In the present case, the record shows appellant intended 
to appeal from the judgment on the merits rendered Febru­
ary 28, 1968. Both parties have prepared briefs on the 
district court’s judgment and appellees’ do not assert they 
were prejudiced or misled by appellant’s notice of appeal. 
The teaching of Palmer and other cases cited and dis­
cussed above is that appellant’s right to appeal is not 
to be frustrated by formal errors in a notice of appeal 
where, as here, no one has been misled.



7

CONCLUSION

For the reasons stated above and in appellant’s original 
brief, this court should consider this appeal as being taken 
from the district court’s judgment on the merits filed 
February 28, 1968 and that judgment should be reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Conrad K. Harper 
W illiam L. R obinson 

10 Columbus Circle 
New York, New York 10019

E arl M. J ohnson 
R eese Marshall

625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Appellant



Certificate of Service

This is to certify that on the 28th day of October, 1968, 
I served a copy of the foregoing Reply Brief for Appellant 
upon C. Graham Carothers, Esq. of Aufley, Aufley, McMul­
len, Michaels, McGehee & Carothers, P. 0. Box 391, Talla­
hassee, Florida, by mailing a copy thereof to him at the 
above address via United States mail, postage prepaid.

Attorney for Appellant



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