164 F.2d 257 (5th Cir. 1947), 11967, McCloskey & Co. v. Eckart

Docket Nº:11967.
Citation:164 F.2d 257
Party Name:McCLOSKEY & CO. v. ECKART.
Case Date:November 12, 1947
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 257

164 F.2d 257 (5th Cir. 1947)




No. 11967.

United States Court of Appeals, Fifth Circuit.

Nov. 12, 1947

Page 258

T. Paine Kelly, Jr., of Tampa, Fla., for appellant.

B. A. Gregory and Donn Gregory, both of Tampa, Fla., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

Appellee Eckart on July 9, 1945, sued his employer McCloskey & Co., for $1, 002.13 as liquidated damages arising from delay in paying $1, 002.13 overtime earned between Nov. 1, 1942, and Jan. 15, 1943, and also for $100.06 of overtime between July 2, 1944, and Oct. 1, 1944, and a like sum of $100.06 as liquidated damages for delay, all by virtue of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b). He alleged he worked in the payroll department and did work 'necessary in handling the accounts of the many employees engaged in constructing ships and boats for use in interstate and foreign commerce for the United States Government in prosecution of the present war'; and that $1002.13 was about May 15, 1945, paid him for actual overtime worked prior to July 1, 1944, but with no damages added; and an itemized schedule of overtime since July 1, 1944, was annexed. Because of the interest of the United States in the matter, the ships being built on a cost plus basis, the United States District Attorney undertook the defense, but for more than four months was unable to obtain instructions from Washington, and after two extensions of time to plead, the Clerk on plaintiff's motion entered a default on Nov. 29, 1945. On that date further time was asked by the district attorney to allow the defendant to file an answer. The request was resisted, and the court said that in view of the circumstances the plaintiff might go ahead and prove his case, but no judgment would be entered for a few days or weeks to enable the Maritime Commission to come in and show they have a defense. The plaintiff's evidence was then heard. On Dec. 6, 1945, a formal motion was filed to open the default and an answer was tendered. The court said the first question was whether a defense was presented; 'If so, the Court may permit the case to be opened; but if not, it would be an idle gesture'. In addition to the allegations of the answer, counsel made a more detailed statement of the defenses intended to be proved, and the matter was then taken under advisement. On Dec. 21, 1946, a final judgment was rendered, the judge referring in his conclusions of law to each proposed defense and holding that it...

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