Opinion
No. 1623.
October 27, 1926.
In Error to the District Court of the United States for the District of Massachusetts.
Action by the Sterling Cider Company against Andrew J. Casey, formerly acting Collector of Internal Revenue. Judgment for plaintiff (285 F. 885) was affirmed by the Circuit Court of Appeals (294 F. 426). On plaintiff's motion that Circuit Court of Appeals recall its mandate, and amend its order affirming judgment, by adding thereto the words "with interest." Motion denied.
William W. Armstrong, of Rochester, N.Y., and George R. Farnum, Asst. U.S. Atty., of Boston, for plaintiff in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
On December 21, 1923, this court entered an order affirming the judgment of the District Court in the above-entitled case; said judgment having been rendered in favor of the Sterling Cider Company, and the government having prosecuted a writ of error to this court.
The Sterling Cider Company now (at the October term, 1926) presents a motion asking that we recall our mandate and amend the order by adding thereto the words "with interest." The government objects to this.
As the term at which the order of December 21, 1923, was entered has long since expired, and the modification desired would involve a matter of substance, and not of mere form, we are without power to make the modification, and the motion must be denied. Schell v. Dodge, 107 U.S. 629, 2 S. Ct. 830, 27 L. Ed. 601; E.G. Staude Mfg. Co. v. Labombarde, 247 F. 879, 160 C.C.A. 101.
The motion is denied.