*Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-50692

Summary Calendar

GIHLS PROPERTIES INCORPORATED,

Plaintiff-Appellee,

VERSUS

LOUIS REDONDO; COMMERCE INVESTMENTS INCORPORATED;

ONE HUNDRED PLUS CORPORATION; SEVEN H CORPORATION;

STACY M. HALL; PEMBROKE CAPITAL INCORPORATED,

Defendants,

ONE HUNDRED PLUS CORPORATION; SEVEN H CORPORATION;

STACY M. HALL,

Defendants-Appellants.

Appeal from the United States District Court

For the Western District of Texas

M0-96-CV-009)

March 25, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*
2

Gihls Properties, Inc., appellee, has filed a motion to

dismiss this appeal for lack of appellate jurisdiction. The

appellants, One Hundred Plus Corporation, Seven H Corporation, and

Stacy M. Hall, filed a response to the motion to dismiss this

appeal. Service of process against appellants had been achieved

through certified mail, on April 27, 1996, and appellants failed

and refused to file an answer or other response to the first

amended complaint by the requisite date of May 20, 1996. On May

30, 1996, appellee applied to the United States District Court

clerk for entry of default against appellants. Likewise, on May

30, 1996, the district clerk filed the entry of default and, on

June 3, 1996, the district court entered the default judgment

against appellants. This default judgment was not a final judgment

because various other defendants who had been served and answered

in this cause were still parties to the suit. 

On June 10, 1996, the district court entered a final agreed

judgment, which awarded appellee a money judgment against one other

defendant and dismissed all other defendants with the exception of

the appellants. The final judgment also reaffirmed verbatim the

default judgment previously entered against appellants. On June

14, 1996, appellants filed an answer in this cause, but on June 18

the district court dismissed such answer as moot because of the

entry of final judgment on June 10, 1996. On July 1, 1996,

appellants filed a motion to set aside the final judgment on the

grounds that it was “the result of mistake, inadvertence, surprise,
3

or excusable neglect as defined in Rule 60 of the Federal Rules of

Civil Procedure.” On July 18, the district court denied

appellants’ motion to set aside the judgment. On August 5 and 6,

appellants filed their first amended and second amended motions to

set aside the default judgment and stay execution of the default

judgment. On September 9, 1996, appellants filed a notice of

appeal “from the final judgment entered in this action on July 3,

1996 [sic].”

In view of the foregoing chronology we conclude that we do not

have appellate jurisdiction. The entry of the agreed final

judgment on June 10, 1996, started the 30-day time period during

which a notice of appeal must be filed to perfect our appellate

jurisdiction. No notice of appeal was filed until September 9,

1996, long after the expiration of the 30-day period. We

recognize, of course, that if timely motions are filed under either

FED. R. CIV. P. 59 or 60 the running of this 30-day time period may

be postponed until 30 days after entry of an order disposing of

such motion. 

Appellants’ motion under Rule 60 to set aside the default

judgment was filed on July 1, 1996, but such motion was denied on

July 18, 1996. The notice of appeal was not filed until September

9, 1996, which is more than 30 days after the entry of the order

denying the Rule 60 motion. We find no provision in the Rules of

Civil Procedure which would permit the appellants to re-urge their

Rule 60 motion by filing a first amended or a second amended motion
4

to set aside the default judgment. These motions relied on the

same ground under Rule 60 which had been asserted in the original

motion to set aside default judgment. Such repetitive motions

cannot be used to extend the time in which the notice of appeal

must be filed. Accordingly, we hold that the notice of appeal

filed September 9, 1996, did not effect the appeal of this case and

we, accordingly, dismiss this appeal for lack of appellate

jurisdiction.

DISMISSED.