Donald C. Sutherland v. Thomas J. Fitzgerald, Trustee of the Estate of Western Engineering Company, Bankrupt

MURRAH, Chief Judge.

This is a motion to dismiss defendant-appellant’s appeal for lack of jurisdiction due to untimely notice of appeal.

The uncontroverted facts are that following the trial court’s judgment for plaintiff, the defendant filed, but did not serve, a motion for new trial. And, timely filing and service are both prerequisite to an effective motion for new trial. See Rule 59(b) and Rule 5 F.R. Civ.P., 28 U.S.C.A.; Brest v. Philadelphia Transportation Co., 3 Cir., 273 F.2d 22; United States v. Caruso, 3 Cir., 272 F.2d 799; Steward v. Atlantic Refining Co., 3 Cir., 235 F.2d 570; 3…