455 F. 2d 977 - Thonen v. W Jenkins

Defendants, various officers of East Carolina University, have appealed from an interlocutory order of the district court directing that the plaintiff who was indefinitely suspended as a student">student by the University Board be afforded an administrative appeal of the suspension order to the Review Board, the reviewing body established under the University's rules governing student">student discipline to review actions of the University Board. The alleged error is that plaintiff failed to initiate review within the time prescribed by the rules and that, therefore, the district court abused its discretion and exceeded its authority and jurisdiction in entering the order.

Our examination of the record discloses that in an opinion filed in subsequent proceedings in this case, the district judge stated that the order appealed from was entered with the agreement of all counsel of record, including counsel for defendants. The accuracy of this statement is not challenged in the brief filed on behalf of defendants in this court. Indeed, the district judge's statement is neither mentioned nor is his opinion included in the appendix which defendants filed. We accept the district judge's statement as complete and accurate.

The district court had jurisdiction of the case. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). It is, therefore, axiomatic that defendants cannot appeal from an order entered with their consent unless they establish facts to nullify their consent. Martin Marietta Corporation v. F. T. C., 376 F.2d 430 (7 Cir. 1967), cert. den., 389 U.S. 923, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967); Stanford v. Utley, 341 F.2d 265 (8 Cir. 1965); Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379 (7 Cir. 1954); Kelly's Trust v. C. I. R., 168 F.2d 198 (2 Cir. 1948).

We dispense with oral argument and affirm the district court.

Affirmed.