Lenore FOMAN, Plaintiff, Appellant, v. Elvira A. DAVIS, Executrix, Defendant, Appellee.
No. 5808.
United States Court of Appeals First Circuit.
June 26, 1961.
Rehearing Denied Aug. 17, 1961.
Of course it was this envisaged contingency—the making of profits—which transpired in 1951. The happening of that contingency fixed the obligation to repay principal and pay interest and at the same time it affоrded the means by which to accomplish payment. It was, of course, wholly fortuitous. The Korean War—certainly an event contemplated neither in 1947 nor in 1950—revived history‘s old lesson. The demand for merchant shipping was acute, and where in 1950 the S.S. Ourania Gounares was a drug on the market and a dead loss to her owners, she proceeded to earn freight revenues aggregating $737,319.38 producing a net profit for the corporation of $158,351.44. From these earnings, the corporation reduced the principal indebtedness due Alex to $63,563.64. It paid to him $52,227.43 as interest and deducted the entire amount in 1951. For the reasons indicated we hold this was proper and the District Court‘s cоnclusion to the contrary must be reversed.
We think, however, that the District Court had adequate support in the record for its conclusions on depreciation. The Taxpayer has not shown the Court to have been in errоr in fixing the amount of salvage at $17,000 and, of course, some allowance is required.
The result is that the case must be reversed and remanded with respect to the accrual of interest for further and consistent proceedings. In all other respects the judgment is affirmed.
Reversed and remanded in part and affirmed in part.
Henry N. Silk, Boston, Mass., with whom Guterman, Horvitz & Rubin, Boston, Mass., was on brief, for appellant.
Roland E. Shaine, Boston, Mass., with whom Brown, Rudnick, Freed & Gesmer, Boston, Mass., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
Plaintiff in the instant case apрeals from a judgment of the United States District Court for the District of Massachusetts entered following the allowance of defendant‘s motion to dismiss and from orders of the district court denying plaintiff‘s motion to vacate judgment and to amend her complaint.
Defendant filed an answer which denied the making of such agreement and set up various defenses, among them, the bar of the statute of frauds. Defendant on the same day also filed a motion to dismiss the action.
On December 20, 1960 plaintiff filed a motion to vacate the order granting defendant‘s motion to dismiss and the judgment thereon in order to permit plaintiff to file a motion to amend her complaint by adding a second cause of action for monies paid and services rendered for and on behalf of the decedent. Plaintiff at the same time filed a motion to so amend and attached the proposed amendment.
On January 17, 1961 plaintiff filed a notice of appeal from the judgment entered December 19, 1960. Subsequently on January 23, 1961 the district court held a hearing on plaintiff‘s motions of December 20, 1960 and denied each motion. A notice of appeal from the denial of these motions was filed by plaintiff on January 26, 1961.
Preliminarily there is a question of what is properly before us on appeal. A motion under
Although the cases do authorize the vacating of a judgment under both rules in the proper circumstancеs, Klapprott v. United States, 1948, 335 U.S. 601, 615, 69 S.Ct. 384, 93 L.Ed. 266, judgment modified 1949, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099; Patapoff v. Vollstedt‘s Inc., 9 Cir., 1959, 267 F.2d 863; Kelly v. Delaware River Joint Commission, 3 Cir., 187 F.2d 93, certiorari denied 1951, 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614; 6 Moore, Federal Practice ¶ 59.12 [1] (2d ed. 1953), we believe that the full context of the rules dictates that resort should be made to the procedure under
In regard to the contention that the district court abused its discretion in not allowing plaintiff‘s motions to vacate the judgment and amend her comрlaint, there is nothing presented by the record to show the circumstances which were before the district court for its consideration in ruling on the motions. We, therefore, cannot say that the district court abused its discretion.
Judgmеnt will be entered dismissing the appeal insofar as it is taken from the district court‘s judgment entered December 19, 1960; and affirming the orders
On Petition for Rehearing
HARTIGAN, Circuit Judge.
Plaintiff‘s petition for rehearing seeks to read into our opinion much broader principles than are justified or were intended. In holding that the second notice of appeal did not bring before us the propriety of the judgment of dismissal we did not intend to overrule or qualify our earlier cases, of which Creedon v. Loring, 1 Cir., 1957, 249 F.2d 714, 716, cited by plaintiff, is an example. In Creedon v. Loring, following the entry of judgment for the defendants upon verdicts of the jury, plaintiffs filed a motion for a new trial. After that motion had been denied, plaintiffs appealed “from the order * * * denying plaintiff‘s motion for a new trial.” The defendants moved to dismiss thе appeal as not having been taken from the final judgment. We denied this motion as “founded on a pure technicality.” We pointed out, however, that plaintiffs were limited in their appeal to those alleged errоrs “on which the motion for the new trial was based; it is not open to appellant to urge other alleged errors at the trial which might have been presented on an appeal from the original judgment itself.” Id., at page 717.
Similarly, other circuits have recognized that an appeal from the denial of a new trial may carry back to the judgment in which the errors sought to be rectified by the motion occurred. See, e. g., Cheney v. Moler, 10 Cir., 1960, 285 F.2d 116, 118; Holz v. Smullan, 7 Cir., 1960, 277 F.2d 58. In Donovan v. Esso Shipping Company, 3 Cir., 1958, 259 F.2d 65, 68, certiorari denied 1959, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572, the court said: “A defective notice of appeal should not warrant dismissal for want of jurisdiction where the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice and where the defect has not materially misled the appellee. * * * For example, an appeal from the denial of a new trial may under exceptional circumstances be treated as an inept attempt to appeal from the judgment which preceded that denial.” However, the court went on to say: “While mere technical omissions in the notice of appeal should not deprive appellant of his right of review, where the appeal is taken specifically only from one part of the judgment the appellate court has no jurisdiction to review the portion not appealed frоm.” Id., 259 F.2d at page 68. The notice of appeal in that case specifically sought review of the dismissal of all causes of action “other than that cause of complaint on maintenance and cure.” The court held it was without jurisdiction to consider the maintenance and cure question. All of these cases, however, indicate that the determinative element is one of intent, i. e., whether the intent to appeal from the judgment may be reasonably inferred from the notice of appeal.
In the case at bar, following the original judgment of dismissal, plaintiff did not move for review or reconsideration, comparable to a motion for a new trial, but moved for leave to amend the complaint by adding a self-styled “Second Cause of Action,” by which she sought substantially less damages, upon a different theory, predicated on the assumption that the dismissal of the first cause of action was in fact correct. This was, by hypothesis, an independent matter. Any error involved in the denial of this motion for leave to amend could relate back in no way to errors which entered into and infected the original judgment. Also, militating against plaintiff‘s position that the second notice of appeal was intended to be an appeal from the original judgment of dismissal is the factor that plaintiff plainly thought she appealed from that judgment by her first notice of appeal. Now that that notice of appeal has been held premature, plaintiff contends that the second notice of appeal is sufficient. We believe, however, that under the principles of the above-cited cases, plaintiff‘s second notice of
If plaintiff‘s second appeal was in her mind intended to encompass the old cause of action rather than, or in addition to, the proposed new one, it was deficient not technically, but in substance.
The petition for rehearing is denied.