Section 350 of 28 U.S.C. provides that
"no appeal . . . intended to bring any judgment or decree before
the Supreme Court for review shall be allowed or entertained unless
application therefor be duly made within three months after the
entry of such judgment or decree."
Rule 36 of the Rules of this Court provides that an appeal to
this Court from a state court of last resort may be allowed "by the
chief justice or presiding judge of the state court, or by a
justice of this court."
1. An appeal for which a timely application was made to the
Chief Judge of the Court of Appeals of New York could have been
allowed by him either before or after the expiration of the
three-months period. P. 319 U. S.
2. Within the three-months period, application for appeal may be
made to the state judge and a justice of this Court at the same
time, when necessary to preserve the right of appeal. P.
319 U. S.
3. Where an application for appeal has been made to the state
judge within the three-months period and has been denied, a
subsequent application to a justice of this Court, filed after the
three-months period has expired, is too late. P. 319 U. S.
Appeals from a judgment, 289 N.Y. 119, 44 N.E.2d 391 (entered in
the Supreme Court, Appellate Division, on remittitur) sustaining
the validity of the New York Unemployment Insurance Law. See
263 App.Div. 756, 774; 30 N.Y.S.2d 930, 32 N.Y.S.2d
Page 319 U. S. 413
In these cases, appellants have sought to appeal under § 237(a)
of the Judicial Code, 28 U.S.C. § 344(a), from judgments of the New
York courts sustaining the validity of the New York Unemployment
Insurance Law (N.Y. Labor Law, § 500 et seq.
applicable section, 28 U.S.C. § 350, provides that
"no . . . appeal . . . intended to bring any judgment or decree
before the Supreme Court for review shall be allowed or entertained
unless application therefor be duly made within three months after
the entry of such judgment or decree."
The question for our decision is whether the appeals to this
Court in these cases were timely. In each, within three months
after the judgment of the Court of Appeals (see Department of
Banking v. Pink, 317 U. S. 264
the appellant made timely application for allowance of the appeal
to the Chief Judge of the New York Court of Appeals, who, being in
doubt as to the finality of the judgments, denied the applications
shortly before the expiration of the three-months period. ,On
application to an Associate Justice of this Court, made shortly
after the three months had expired, the appeals were allowed by him
with the Court's approval in order that we might resolve an
unsettled question of our practice (see
Kirkham, Jurisdiction of the Supreme Court of the United States,
pp. 717, 718). When we set the cases for argument together with two
companion cases, Standard Dredging Corp. v. Murphy ante,
p. 319 U. S. 306
Page 319 U. S. 414
Elevating Co. v. Murphy, ante,
p. 319 U. S. 306
requested counsel to discuss the question whether the appeals were
"applied for within the time provided by law."
By Rule 36 of our Rules, an appeal to this Court from a state
court of last resort may be allowed "by the chief justice or
presiding judge of the state court or by a justice of this court."
But such an appeal may not be allowed when no application is made
to the judge or justice authorized to allow it within the period
prescribed by the statute. Here, appellants' applications to the
Chief Judge of the Court of Appeals were timely, and could have
been allowed by him either before or after the expiration of the
three-months period. Cardona v. Quinones, 240 U. S.
; Latham v. United States,
131 U.S. Appendix,
xcvii; United States v.
10 Wall. 423, 77 U. S. 427
appeals could also have been allowed, on such timely applications,
by a justice of this Court. And there is nothing in the statute or
Rules to preclude application within the three months to both the
state judge and a justice of this Court at the same time where
shortness of time makes that necessary to preserve the right of
appeal. Cf. Spies v. Illinois, 123 U.
, 123 U. S.
But when the Chief Judge of the Court of Appeals denied
appellants' applications and disallowed the appeals, the
applications were no longer pending before him, and, at least in
the absence of any reconsideration by him, appeals could be allowed
only on a new application either to him or to a justice of this
Court. The time within which such applications could be made is
that prescribed by the statute. Its language is peremptory -- "no .
. . appeal . . . shall be allowed or entertained unless application
therefor be duly made within three months." The purport of the
words is that the appeal allowed must be one that is applied for
within the three-months period. An application which has been made
within that period and denied does not satisfy that requirement,
nor does a later
Page 319 U. S. 415
application filed after the time limit has expired even though
it be allowed.
The purpose of statutes limiting the period for appeal is to set
a definite point of time when litigation shall be at an end, unless
within that time the prescribed application has been made, and, if
it has not, to advise prospective appellees that they are freed of
the appellant's demands. Any other construction of the statute
would defeat its purpose. Would-be appellants could prolong
indefinitely the appeal period, by making application to one judge
within the three months and, upon its denial, by applying
successively to other judges even after the prescribed time for
appeal had ended. Moreover, in such cases, extension of the period
for appeal could be limited only by recourse to the doctrine of
laches applied in the particular circumstances of each case.
We conclude that appellants' applications for allowance of the
appeals, after the expiration of the three-months period, were too
late, and that this Court is without jurisdiction to entertain the
appeals, which are accordingly
* Together with No. 813, Lake Tankers Corp. v. Murphy,
Acting Industrial Commissioner, et al.,
also on appeal from
the Supreme Court of New York, Appellate Division, Third