Eady v. Foerder, 16069.
| Decision Date | 13 July 1967 |
| Docket Number | No. 16069.,16069. |
| Citation | 381 F.2d 980 |
| Parties | Russell EADY, a minor, by Lillian Becker, his mother and next friend, and Lillian Becker, Plaintiffs-Appellees, v. Otto R. FOERDER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John T. Kennedy, Chicago, Ill., for appellant.
Allen S. Gerrard, David N. Rosner, Chicago, Ill., for appellees.
Before SCHNACKENBERG, KNOCH and SWYGERT, Circuit Judges.
Otto R. Foerder, defendant, has appealed from the judgment or order of the district court entered November 7, 1966, granting plaintiffs' motion for a new trial in the above-entitled case.
On April 14, 1966, in an action brought by plaintiffs to recover damages occasioned by the alleged negligence of defendant in driving his automobile, the jury returned a verdict for defendant.
The district judge's minute order, following the recital of the receipt of the verdict, reads, verbatim:
Judgment to enter. Leave to plaintiff to file any and all post trial motions with brief and written argument in support thereof within 30 days. Opposing brief and argument 30 days thereafter — reply thereto 10 days — whereupon said motions will be disposed of by the court without oral argument.
After the verdict was read the court directed judgment to be entered on the verdict. Then the court asked plaintiffs' counsel if he was going to make any motion notwithstanding the judgment, and suggested to counsel for plaintiff Plaintiffs' counsel asked if it would be permissible to have thirty days. The court then said * * *"
On May 12, 1966 plaintiffs filed a typewritten motion for a new trial, which the court by its November 7, 1966 order granted. The order recited, in part:
"* * * it being the finding of the court based upon a review of its trial notes that the jury verdict rendered herein was and is against the substantial and manifest weight of the evidence."
Defendant contends that the court erred in granting this motion for a new trial because it was not served within the ten days required by Rule 59(b).1 He also contends that rule 6(b), providing for enlargement of time, specifically excludes rule 59(b).
We are convinced by the circumstances in this case that the court properly entertained the motion for a new trial and we would not be justified in reversing its November 7, 1966 order. This position is in harmony with the holdings in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964). We feel that there are "unique circumstances"...
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Parisie v. Greer
...491 F.2d 1092, 1093 (8th Cir.1974)- ; Motteler v. J.A. Jones Construction Co., 447 F.2d 954, 955-56 (7th Cir.1971); Eady v. Foerder, 381 F.2d 980, 981 (7th Cir.1967); 6A J. Moore, Federal Practice p 59.09 (2d ed. 1982); 9 J. Moore, B. Wald & J. Lucas, Federal Practice p 204.12 (2d ed. 1982)......
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Varhol v. National R.R. Passenger Corp.
...Varhol's motion was timely, and thus whether Varhol has preserved his damages issue for appeal, depends on the status of Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), which held that in certain "unique circumstances" a district court may dispose of an otherwise untimely new trial motion on ......
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Agola v. Hagner
...a plaintiff relied on the district court's permission, albeit erroneous, to file within an extended time period. See Eady v. Foerder, 381 F.2d 980, 981 (7th Cir.1967); cf. Bailey v. Sharp, 782 F.2d 1366, 1368 (7th Cir.1986) (The court construed Eady narrowly and declined to apply "unique ci......
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Lokey v. Irwin
...when a party relies, to its detriment, on a district court's order that is contrary to the rules of civil procedure. Eady v. Foerder, 381 F.2d 980, 981 (7th Cir.1967). However, the United States Supreme Court explicitly overruled this doctrine in Bowles v. Russell, where it ruled the “uniqu......