v1663-829

No. 6050

IN THE

United States Circuit Court of Appeals

For the Ninth Circuit

Thomas Day Co.^,

Appellant,

vs.

DOBLE LABORATORIES;,

Appellee.

i- I L t. O

rvjL p. GxniEN.

CLRK

SUPPLEMENTARY MEMORANDUM FOR

APPELLANT ON MOTION TO DISMISS.

If there was a valid petition for rehearing filed in

the lower court, then the time for appeal did not be-

gin to run until the denial of said petition. Hence

the question presented by the motion is not jurisdic-

tional, but merely an alleged error of procedure in

not filing the petition within ten days. This generic

question has twice been decided by this court.

In Southern Pacific Co. v. Johnson, 69 Fed. 559,

562, a bill of exceptions in support of a motion for

new trial was not presented within the time required

by a local rule. This court said :

^^But adjudications in the supreme court of the

United States and in the circuit court of appeals

hold that rules of court fixing the time within

which bills of exceptions are to be presented, al-

lowed, or settled, and certified to by the trial

judge, are merely directory. These decisions are

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