Associated Indemnity Corporation v. Marshall, 7235.

• Decision Date: 19 July 1934
• Docket Number: No. 7235.,7235.
• Citation: 71 F.2d 420
• Parties: ASSOCIATED INDEMNITY CORPORATION v. MARSHALL, Deputy Compensation Commissioner, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

71 F.2d 420 (1934)

ASSOCIATED INDEMNITY CORPORATION v. MARSHALL, Deputy Compensation Commissioner, et al.^*

No. 7235.

Circuit Court of Appeals, Ninth Circuit.

May 31, 1934.

Rehearing Denied July 19, 1934.

E. L. McDougal and Lawrence Lister, both of Portland, Or., for appellant.

W. A. Illidge, of Portland, Or., for appellee Thomas.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

PER CURIAM.

Upon the authority of Associated Indemnity Corporation et al. v. Wm. A. Marshall, etc., et al., 71 F.(2d) 235, this day decided, involving the same question here presented, the decision of the District Court is affirmed.

On Rehearing.

The appellant seeks rehearing in this case on the ground that the situation with reference to the pleadings was somewhat different on this appeal from that in the companion case between the same parties, No. 7118, 71 F.(2d) 235. We call attention to the difference stated by the appellant for the purpose of making more clear the fact that we have passed upon the question thus presented, as follows:

"We submit, however, that the questions presented in the two cases are not the same, but, on the contrary, involve very different principles of law.

"The question involved in case No. 7118 was whether an appeal by a party indefinitely extends the time for an independent appeal by the other party or parties. To this question the court answered in the negative.

"In the instant case the question is whether or not an appeal in the manner provided by law by one party gives the other party the right to answer the complaint and to set up by way of answer all defenses possible, including a counterclaim or offset."

The counterclaim or set-off to which petitioner refers in this excerpt from his petition for rehearing is a claim based upon the contention that the award theretofore made by the deputy commissioner in favor of John Thomas was too great in amount. The effort is thus by way of cross-complaint to attack the decision of the commissioner after the period fixed by law for such an attack. The question involved is one of statutory construction. We think it is immaterial whether the attack is by way of intervention, as in case No. 7118, or by way of cross-complaint. In either event we hold the attack is too late unless filed within a thirty-day limitation provided by section 21 (a) of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 921 (a).

Petition denied.

* Rehearing denied July 19, 1934.