Opinion
No. 11333.
March 9, 1953.
Wilbur W. Piper, Knoxville, Tenn. (Fowler, Long Fowler, Knoxville, Tenn., of counsel), for appellant.
Nathan Orris Hale, Knoxville, Tenn., for appellees.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
The Court having considered appellees' motion filed herein on December 15, 1952, to reinstate the judgment of the District Court, notwithstanding the judgment of this Court of November 28, 1951 reversing said judgment and remanding the case to the District Court for further proceedings consistent with the views expressed therein, said motion being based upon a change in the statutory law applicable to this case on July 31, 1951, after the entry of the judgment in the District Court; Sec. 1895, Title 50, U.S.C.A.Appendix; Carpenter v. Wabash Ry. Co., 309 U.S. 23, 27, 60 S.Ct. 416, 84 L.Ed. 558; said amendment of the statute not having heretofore been brought to the attention of the Court;
And it appearing that the mandate of this Court was issued on March 19, 1952, and although no judgment has as yet been entered by the District Court pursuant thereto, nevertheless the term of this Court during which said mandate issued expired on the first Monday in October 1952; Rule 3, Rules of Court of Appeals for the Sixth Circuit; and that the present motion was not filed until after the expiration of said term;
And treating appellees' motion as a motion to recall the mandate and to set aside the judgment entered by this Court, on November 28, 1951, 192 F.2d 1017:
It Is Ordered that said motion be and is overruled. Ex parte National Park Bank, 256 U.S. 131, 41 S.Ct. 403, 65 L.Ed. 863; Bushnell v. Crooke Mining Smelting Co., 150 U.S. 82, 14 S.Ct. 22, 37 L.Ed. 1007; Fairmont Creamery Co. v. State of Minnesota, 275 U.S. 70, 72, 48 S.Ct. 97, 72 L.Ed. 168; Jourolman v. East Tennessee Land Co., 6 Cir., 85 F. 251. See also Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 244, 256, 64 S.Ct. 997, 88 L.Ed 1250; Nachod v. Engineering Research Corp., 2 Cir., 108 F.2d 594; Hart v. Wiltsee, 1 Cir., 25 F.2d 863; Montgomery v. Realty Acceptance Corp., 3 Cir., 51 F.2d 642, 643; Foster Bros. Mfg. Co. v. NLRB, 4 Cir., 90 F.2d 948; Hawkins v. Cleveland, C.C. St. L. Ry. Co., 7 Cir., 99 F. 322; Walsh Const. Co. v. U.S. Guarantee Co., 8 Cir., 76 F.2d 240, 242; Waskey v. Hammer, 9 Cir., 179 F. 273. Compare Bernards v. Johnson, 314 U.S. 19, 29-30, 62 S.Ct. 30, 86 L.Ed. 11.