Federal Deposit Ins. Corporation v. Alker, 8805.
Decision Date | 25 November 1947 |
Docket Number | No. 8805.,8805. |
Parties | FEDERAL DEPOSIT INS. CORPORATION v. ALKER et al. |
Court | U.S. Court of Appeals — Third Circuit |
Robert T. McCracken, of Philadelphia, Pa., for appellants.
Allen S. Olmsted, of Philadelphia, Pa., for Federal Deposit Ins. Corporation.
Before BIGGS, McLAUGHLIN, and O'CONNELL, Circuit Judges.
We have considered this case three times. We held upon the original argument that the petitioners-appellants, Alker and DuBan, were not entitled to assert against FDIC as a defense in the suit to recover a deficiency judgment against Alker an alleged oral contract to forego foreclosure on collateral securing a note. See 3 Cir., 151 F.2d 907. Our decision was based primarily upon the ruling of the Supreme Court in D'Oench, Duhme & Co. v. Federal Deposit Ins. Corporation, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956.
The petitioners-appellants, Alker and DuBan, then sought leave to file a petition in the nature of a bill of review in order to obtain a new trial in the court below on the ground of alleged newly discovered evidence. We held that the evidence which Alker and DuBan sought to present to the court below did not touch the critical issue of a "secret" agreement. Accordingly we dismissed the petition. See 3 Cir., 163 F.2d 123.
Following the decision just referred to and on August 12, 1947 the petitioners filed a petition for rehearing which alleged, inter alia, that there was written upon the two notes first given by Alker, which notes were later consolidated into the single note upon which FDIC based its action in the suit at bar, the respective legends, "For addtl. collateral and agreement with Mr. Alker and A. DuBan see W. K. H." and "For addtl. collateral and agreement with Alker and A. A. DuBan see other note and W. K. H." "W. K. H." was an officer of Integrity Trust Company, the holder of the notes.
Alker asserted at the second rehearing, as will appear from the transcript of the proceedings, that the legends quoted were typed by the Trust Company on the two original notes at or about the time when the new consolidated note, dated December 11, 1936, was delivered by him to the Trust Company. Even if we take Alker's contention at its face value he claims only that the period during which the original notes with the legends written upon them were in the possession of the Trust Company amounted to six or seven days. This is demonstrated conclusively by the following concessions made by the petitioners: the original notes were photostated at or about the time, viz., on or about December 11, 1936, when the consolidated note was delivered by Alker to the Trust Company, the photostats of the original notes then being placed in the file with the consolidated note later sued upon: the photostats do not show the legends hereinbefore quoted. After the original notes were returned to Alker on or about December 11, 1936...
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