*1 Goldstein, Pittsburgh, Samuel Pa. L. CROWE, Trading William A. as William (Suto, Power, Goldstein, Walsh, & Pitts- Company, Appellant, A. Crowe burgh, Pa., Stroh, Pittsburgh, Samuel Y. Pa., brief), appellee. BENSON, INC. RAGNAR Before KALODNER HASTIE, Judges. Circuit United States Court of Judge. KALODNER, Third Circuit. appeal by This is plaintiff, Argued Wil- May 15, 1962. Crowe, Trading A. liam as William A. Aug. Decided Company, Crowe from an Order of the District Court for the Western District Pennsylvania, vacating a default $35,- ment favor the amount of Ragnar defendant, 603.37 Benson, Inc., ain suit to recover for serv- performed ices under a contract between plaintiff and defendant in connection with Gateway the cosntruction of the Park Ga- Gateway Center, rage, Pittsburgh, Penn- sylvania. in this suit was filed on 6, telephone There followed a exchange

conversation and an between counsel and defend- *2 74 agreed counsel advised former of the District in which the the Clerk ant’s counsel receipt extension his the aforemen-

to consent to reasonable tioned filing September Defend- the check.1 On time for the of an answer. Clerk, pursuant neces- the Dis- prepare the terms of ant’s sary to to the counsel was Court. trict judgment Order, to the vacated order for submission February 13,1961. prepared. proposed On never entered was September plaintiff appealed. 26 Subse- On Clerk the December by quently, directly letter on District, Court the notified defendant November trial Court entered until the case be called an Order During February, or the plaintiff’s period pre-trial unable defendant’s counsel fixed for that conference earlier day. practice to Order, devote full to his In this District attention Court the mother because stated Rule of serious illnesses of under defendant’s motion 60(b) granted no and had his wife. On been “for the reason by appearance having coun- entered Court been was of the having negotiations sel previously defendant and no answer been had filed, parties' been ducted and the Clerk of Court the counsel judgment by plain- plaintiff default to since counsel application September identity tiff’s knew of the coun- to On of defendant’s do so. following proceeded a writ and to secure sel the issuance nevertheless August apprising com- a fel- the default execution without on 31 garnishment proceedings low member said fact mencement of bar of the accounts, given failing de- to him defendant’s to have notice bank through counsel to vacate the fendant’s filed a motion 60(b), Courts, my judgment that in- default Rule it was under justice Procedure, Federal Rules of Civil terests C.A., stay garnishment pro- be lifted.” to ceedings. appeal plaintiff On contends hearing (1) 13, following the District its discre September abused On day, tion default previous the District had on the (2) denying arbitrarily granting acted an Court entered Order opportunity mo to answer defendant’s to ant’s motion vacate the 2 failing garnishment tion under oath to com terminating ment proceedings ply providing with Rule upon its Local conditioned defendant’s filed payment or before the third of the sum to counsel Wednesday of month was to be heard within hours. $750.00 during judge the miscellaneous an an- defendant to file further directed following by Septem- month. plaintiff’s complaint swer to pre- 13 for 18 and fixed November ber says reply, In that the Dis- trial conference. trict Court’s judgment September counsel is defendant’s therefore urges appealable. check for not It further $750.00 sent his September Court did not plain- accompanied by agreed parties an affidavit 1. It possession of the facts was still counsel counsel as tiff’s hearing instant were true. At the check when stated $750.00 1961; Court, plaintiff’s counsel peal by plain- explain afforded an was not returned the check surrounding securing counsel circumstances tiff’s counsel The trial December that he counsel’s stated ex- although unsworn, planation, having cir- motion set forth the 2. Defendant’s oath, pertaining made under failure been coun- cumstances appearance of the Court. answer sel was officer and file an enter arbitrary. arbitrarily appealable. Rule Local act and that Therefore it applicable Tozer relied Charles A. Krause *3 emergency (3 1951). in cre- 189 F.2d 242 of the situation Cir. garnishment proceedings. ated The in the suit was outset, noted At the it should be 6, June 1960. The was served summons does not contend June service, jurisdic beyond Court acted represented tele- the defendant vacating judgment as tion in phoned plaintiff’s attorney asked him Daniels the case in Demeretz v. Mo for an extension answer. of time to Inc., (3d Freight, Cir. F.2d 469 tor agree Plaintiff’s said he would 1962). only Plaintiff asserts any reasonable The extension of time. was an certain abuse of other sent a letter to procedural irregularities. respect With attorney saying he would say only contentions, to these we need prepared “to be executed the Court do not reach them since the we signed by you, early vacating District Court beginning Week 1960.” judgment nonappealable is a interlocu- was not done and no answer or other tory order, accordingly are with- we pleadings were filed on of the de- behalf jurisdiction appeal. out this to entertain appeared fendant. The case on the trial (3d Agne, United States v. 161 F.2d 331 list for December 1960. The 1947) Cir. .3 court clerk advised the defendant of requests Plaintiff the case would that we be called for trial petition in as a of man The writ prohibition appear- damus told if we consider the clerk defendant there was no arguen nonappealable. Assuming, suggested Order do, ance entered for it and it ob- appeal may treated,

that an tain we be so opinion are writ use was notified inappropriate here. It is settled clerk that the action would be tried dur- extraordinary “the writs cannot be used ing February 13, the week of 1961. On appeals as substitutes for eight date, almost from the months Casualty Holland, Bankers Life & Co. v. inception suit, plaintiff had a default 98 L.Ed. judgment entered. Notice of that was “exceptional There are no mailed defendant the clerk. There justify circumstances” here which would proceedings were no further until six LaBuy the issuance of the writ. v. months later when execution was issued. Co., Howes Leather that, It was (1957); 1 L.Ed.2d 290 entered an Murphy, (3d Green v. 259 F.2d pearance on behalf of the defendant 1958). Cir. moved to vacate the For the reasons stated the will argu- Thereafter there was informal dismissed. ment on the motion before the court. (dis- testimony. procedure There was no That senting). directly contrary to the district court aside of the in rule which the motion to be as- signed this case was particu- discretion and next session of the appealability cannot subscribe 3. We the view ex- and the tbe District dissenting opinion pressed in the action was not at issue it a “final decision” in that it ter- appealable proceedings. under Tozer v. Charles A. minated further In the in- (3d Krause 189 F.2d 242 stant case the 1951). In that case Cir. contemplated proceedings Court dismissed the de- further fendant to set aside a default the lower court. steps in the cause. The court found lar of the court. branch gross negligence. guilty other side stated, “I think counsel never protect accorded duty grossly. ant was derelict brushing aside but complying law provisions of with the salutary rule, peremptorily its own set they Courts.” exist States United and after that when exer- the Court He further said'“Should case court on grant where relief cise discretion and doing ascribed as comply “that reason for so flagrantly fails justice required fla- of this Court with the rules *4 Un- should be lifted.” grantly pays no attention to der the facts can- the district order court go out from the fairly not be sustained. Then is entered?” condition vacated the paid attorney $750. order en- on that term in hear-

tered “For the reasons set forth *** ing ”. held A check thereafter sent accept which he refused to attorney.1 On returned to defendant’s appealed September 26, 1961 Nelson, Agnes mi- NELSON and Oswald reopening from Nelson, nors, by their father T. N. original litigation was record of the friend, of himself and next others to this court clerk mailed the district Petitioners, similarly situated, filing. 13, 1961 On November court court to this the case was on while Judge GROOMS, Honorable H. H. in the District Court for the the United States Northern pretrial conference. matter Alabama, District of Respondent. Southern “ * said, Division, In that order the court my judgment justice required that said default Court of the first lifted.” This was ment be Fifth Circuit. assigned reason was time such Aug. 17, 1962. more than order of court to its previous. month actually of what bare statement

On the such abuse of

happened was both arbitrary conduct on the “that the interests trial court the re- justice” for the reversal of call question. opening of snap which is before is no reputable waited most Aus. taking any final months before

fifteen Judgment court this court vacated its of the district March court, Judgment mentioned and relisted above affirmed again argument which was had sent May re check pending Ap light check tained the of the U.S. in the “Now July 26, 1962, Judgment which peals action again returning us, date he returned it herewith the I am attorney. check mentioned heretofore Gourley’s original order.”