Bankers Life and Casualty Co. v. Bellanca Corporation, 13625.

• Decision Date: 08 October 1962
• Docket Number: No. 13625.,13625.
• Citation: 308 F.2d 757
• Parties: BANKERS LIFE AND CASUALTY COMPANY, Counter-Defendant, Appellant, v. BELLANCA CORPORATION, Counter-Claimant, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

308 F.2d 757 (1962)

BANKERS LIFE AND CASUALTY COMPANY, Counter-Defendant, Appellant, v. BELLANCA CORPORATION, Counter-Claimant, Appellee.

No. 13625.

United States Court of Appeals Seventh Circuit.

October 8, 1962.

Charles F. Short, Jr., Chicago, Ill., Donald E. Casey, Chicago, Ill., for Bankers Life and Casualty Co., counter-defendant and appellant; Brundage & Short, Chicago, Ill., of counsel.

John Paul Stevens, William G. Myers, Chicago, Ill., for appellee; Rothschild, Hart, Stevens & Barry, Chicago, Ill., of counsel.

Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

In the prior appeals in this case, Bankers Life and Casualty Company v. Bellanca Corporation, 7 Cir., 288 F.2d 784, we affirmed an August 30, 1960, judgment order of the District Court granting judgment in favor of counter-claimant, Bellanca Corporation and against counter-defendant, Bankers Life and Casualty Company, in the sum of $1,250,000.00 plus costs and interest at the rate of 5% per annum since August 8, 1956. Bankers¹ by its former appeal had sought reversal of the District Court judgment or, in any event, its modification to eliminate the pre-judgment interest awarded as part of the judgment. Bellanca by its appeal had sought an increase in the principal amount of the judgment to $4,000,000.00. Following the affirmance Bankers unsuccessfully petitioned this Court for a rehearing and the United States Supreme Court for a writ of certiorari. The petition for certiorari was denied October 9, 1961 (368 U.S. 827, 82 S.Ct. 47, 7 L.Ed.2d 31) and on October 16, 1961, Bankers filed a motion in the District Court which, as subsequently amended, prayed that it be relieved from paying post-judgment interest on the August 30, 1960 judgment of the District Court for the period from September 28, 1960, to May 8, 1961 (amounting to $45,780.52), the period during which Bellanca's cross-appeal was pending.² The District Court denied Bankers' motion and by its formal order entered January 8, 1962, directed the clerk of the court to disburse the sum of $45,780.52 to Bellanca from funds theretofore deposited by Bankers³ and upon making such payment to satisfy of record the judgment of August 30, 1960. It is from this order denying its motion and directing disbursement to Bellanca that Bankers prosecutes this present appeal. Bellanca has not cross-appealed. It filed a motion to dismiss Bankers' appeal, which motion has been taken with the case, and in its brief on the merits urges affirmance.

Our opinion in the previous appeals was filed April 6, 1961, and on that date this Court entered an order that "the judgment of the said District Court in this cause appealed from be, and the same is hereby, affirmed, with costs and interest, in accordance with the Opinion of this Court filed this day." The mandate in Bankers' appeal issued October 17, 1961, and was filed in the District Court October 18, 1961. It contained a recital of this Court's order of April 6, 1961, as above quoted.

It is clear from the face of the District Court's judgment order of August 30, 1960, and from the opinion in the previous appeals, Bankers Life and Casualty Company v. Bellanca Corporation, 7 Cir., 288 F.2d 784, 790, that the judgment order of the District Court included an award of pre-judgment interest from August 8, 1956, as a part of the judgment entered. No mention of interest in the order affirming that judgment was necessary to the retention of this pre-judgment interest allowed because of unreasonable and vexatious delay — it was an integral part of the judgment affirmed. We find no basis for a construction that our order of affirmance "with costs and interest" referred to the...