Bradley Mining Co. v. Boice
205 F.2d 937
9th Cir.
1953
Check Treatment

*1 937 doctrine, certainly regard kind starting should be erosion which ultimately any necessity If given would to which he benefited. remove complaint compliance by charging union in a Sec consider that amended we orig- up 8(a), 158(a), of the as the 29 U.S.C.A. arising out same conduct § ready hack inal until Board is to render its decis relates the date then, complaint, obviously ineffective ion.9 Here, jurisdiction in the Board. to vest The Petition for Enforcement of appear- regulations nothing Act or Order of Board is tile ing new to authorize the institution Dismissed. separate proceeding amend- Board ment, proceeding instant con- must be having begun been original complaint, at which

issuance of the admittedly Board had no author-

time the

ity non-compliance by to act because I. O.

C. CO. v. BOICE. BRADLEY MINING purpose Finally, over-all No. 12684. Act, 159 9(h) 29 U.S.C.A. Section § Appeals Case, 344 phrased (h), the Dant United States Ninth Circuit. 379, 382, 375, 375 73 S.Ct. not 1953. benefits the Act June “is organization the non- to a labor unless flow In this are

Communist affidavits on file.” hearing of the notice of virtue original complaint, with

served any Board was notice, new

without without with

able to

delay very day of the amendment. may may a material not have been

That charging union.

benefit Case, supra, Dant 9(h) Section has construed prescribe precise time

Act to definite test, compli- jurisdictional namely, the time of issuance

ance at

complaint. If we time now extend that subsequent amendment, then, Pope, Judge, might we dissented. Am.Jur., Pleading, 315, p. 619; 41 See.

8. See Chapman Annotation 125 A.L.R. Phrases, 509; Bank, Co., 36 Relation App.D.C. Words v. Griffith-Consumers ; p. 88-95; p. O.J.S., notos 107 F.2d v. Eveland De 15(c), F.R.C.P., 28 U.S.C.A. Of. Rule D.C.Mich., troit Machine Tool 25; Practice, 970; Note 3 Moore’s Federal Surety Cf. Illinois Co. ed., 15.05, p. 817; ibid. See. Peeler, See. 2d v. U. Use S. 240 U.S. p. 15.09, As the rule is 836. 609; 60 L.Ed. Fleisch Pleading, Ain.Jur., 302, p. 498, Sec. mann Const. Co. v. United an amend “It essential element of an S.Ct. 70 L.Ed. of, it must relate to 624; ment that the time Brown, In re of, prior filing to the time complaint or declaration. nonex particularly That of a cause of action when true istence view of begun 10(b) Act, an suit was cannot fact Section be cured amendment, subsequently 160(b), and to cover U.S.C.A. Section 102.17 of accruing right.” Port rules allow See also Texas Board’s amendments to the the. complaint any McCord, prior land Cement Co. time to the issu- ance of order. 58 L.Ed. *2 Pa proceedings

further of Western Rail Corp. cific Pacific Railroad road decided Boice, April 6, 1953,Bradley Mining Co. v. S.Ct. 797. 27, 1953, May this court’s Thereafter on (formerly 25) Rule Rule was amended reading paragraphs adding thereto two new as follows: petitions rehearing be “All for shall by the addressed to and be determined original court as constituted in the hearing. Cal., Francisco, Davis, San Parks John Bres- Ralph Oscar R. W. Worthwine and majority as so of the court “Should hears, Donart, Boise, Weis- George ei- grant rehearing and constituted er, Idaho, Dunne, Fran- and Arthur San B. suggestion ther from a cisco, Cal., appellant. for opinion its own motion be of banc, reheard en that the case should be Hawley, Jr., Langroise B. H.W. Jess Judge. they the Chief shall so inform Boise, Idaho, Sullivan, appellee. E. for W. thereupon con- Judge shall The Chief POPE, HEALY, BONE, Before Cir- judges of the court and vene the active Judges. cuit thereupon the court shall determine en whether shall be reheard the case PER CURIAM. banc.” calendaring of Upon original of the Su to the decision Pursuant assigned duly for it was this case 13, 1953, preme April and this the court con decision to division of amended, appellant’s pe court’s Rule as HEALY, BONE sisting of Circuit con rehearing for en banc has been tition purpose, the division For that and POPE. court as constituted hearing the After constituted the court. as con hearing, and this court so court, 92 the district being that the case stituted Cir., 194 F.2d 80. affirmed. 9 otherwise, reheard en banc or should not be appel January Subsequently, on con so it is now ordered court for a petition entitled “Petition lant filed petition and is that the stituted January rehearing banc.” On en denied. entered an order made and division petition. denying the POPE, Judge (dissenting). petitioned certi for Thereafter my reasons for dissent I have twice 5,May order entered orari F.2d at L.Ed. Why disapprove per- Upon the Supreme Court denied certiorari. passed for trial in formance which the mandate coming down of fully explained. has been Much court below vacate file a motion to for leave to moved here, happened has deplore what petition rehearing en for the denial of assuredly conscience. not on peti for the reinstatement of banc August division de tion. On this division have under- majority of The file, for leave to nied justify their affirmance of the dissenting. 198 F.2d 790. rehearing, either and denial of judgment, otherwise, on the April 13, va- en banc On purely factual certiorari, “involved issues”. granted the the its denial cated my opinion, that is page 791. writ, 198F.2d at the order of the division of vacated is whether a simply not true. petition rehear- is entitled to banc, litigant in a the cause for ing en remanded appellate, ought exer- such that he judges, trial and the verdict is perform opportunity power, and to have to take the case be- cise their constitutional If, now, fore another duty, pass exercising judgment. their *3 discretion, duty this the to it is the of got Although which this is a case against consider whether the verdict diversity by of citi- reason of great weight evidence, the re- he poses important zenship, in it view fuses to the evidence in this consider of question relating to the function federal ground power dis- the that he has no new- judge. a trial a motion for so, he cretion to do it is clear to us that is trial on the the excessiveness party making a depriving said, verdict, F.Supp. the trial court right, substantial this be cor- that page very threshold of this 755: “At the by rected writ of error.” 78 F. inquiry it must be remembered that States, For this reason alone the case the United Amend- should Constitution of State, have been reversed and remanded. of this art. as well ment right all other has secured Guthrie, Cir., In Southern Pac. Co. words, by jury in civil actions trial court, judges all F.2d of this or, preserved’ as stated in the ‘shall be exception, with one reaffirmed rule of ‘shall Constitution of the State circuit, appellate this that an court has the If this mandate is to be remain inviolate’. power something to do about monstrous obeyed with caution must Appellant right verdict. had a to have his is before this when a motion such as now judges to submitted who follow that considered, thought with the is I previously why rule. have I think going if Court is to set aside mind that study opinions in that various except for no reason the verdict that will demonstrate that a of this case excessive, it is this Court feels constitu- produce en banc would a different result. provision jury and a tional will be violated circumstances, say again, In those I it is if in thing the final trial would be useless duty opportun- to afford our that supplant opin- outcome the Court could ity. jury.” place ion recently prepared by In a memorandum assuredly this not the Mur- Most law. presenta- committee of judges circuit Court, Cir., phy v. United States District Congress, tion following to statement is Norfolk Charles v. emphasized hardly “It need found: Cir., Ry. Co., 7 performed by judges services Spiro, Felton v. 78 F. 581. And courts is federal second to none court, proceeding upon trial mis- importance country in its As Nation. discussing premise, after the size of said, Chief Marshall ‘The Justice verdict, that “the concluded amount department comes home in effects jury’s damages judg- was the allowed best fireside; every passes man’s prop- on his ment”, reputation, life, erty, his his his all.’ In the late Sutherland, words Mr. appellant was Justice That the entitled to more political ‘If structure erected that, that such than mistaken renuncia- upon any pillar fathers rests one more se- power by judge the trial tion of is reversi- curely upon another, upon than error, Spiro, was decided Felton v. ble upholds right which of the individual to which supra, by a court of Taft invoke the of the civil courts of members,in which Lurton were it was said: ” the land conduct.’ his remedy for new “But the motion trial party litigant accorded correc- think that what is the trial court of done there stated. But to the in pretty It one of the this must sound the verdict most hollow. For as rights it, jury which a to a important see trial judges court, right is a simply has. It invoke the trial dis- of refused to func- the court to decide whether cretion of the tion.