Leader Clothing Co. v. Fidelity & Casualty Co. of NY
| Decision Date | 10 November 1955 |
| Docket Number | No. 5180,5181.,5180 |
| Citation | 227 F.2d 574 |
| Parties | LEADER CLOTHING COMPANY, Inc., Appellant and Cross-Appellee, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellee and Cross-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas E. Joyce, Kansas City, Kan. (Joseph Cohen, Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins and Norma Braly, Kansas City, Kan., on the brief), for appellant and cross-appellee.
Willard L. Phillips, Kansas City, Kan., Tom J. Stubbs, Kansas City, Mo. (McAnany, Van Cleave & Phillips, Kansas City, Kan., and Stubbs, McKenzie, Williams & Merrick, Kansas City, Mo., on the brief), for appellee and cross-appellant.
Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE, District Judge.
The Leader Clothing Company, Inc., appellant and cross-appellee, moved to dismiss the cross-appeal of the Fidelity & Casualty Company of New York, appellee and cross-appellant, upon the ground that the casualty company has acquiesced in the judgment appealed from by payment. For reasons hereinafter stated, the motion must be overruled.
The clothing company brought suit in the United States District Court for the District of Kansas on a blanket position bond executed by the casualty company to recover for an alleged inventory shortage resulting from fraud or dishonesty of employees. The claim made by the clothing company was for an amount in excess of $24,000, but after a trial, judgment was entered for the clothing company and against the casualty company in the amount of $10,000. Upon the same day the judgment was entered, the casualty company deposited with the clerk of the court a draft for $10,000 in payment and satisfaction of the judgment. The clothing company declined to accept payment and, being dissatisfied with the amount of the judgment, perfected an appeal to this court. The casualty company thereupon cross-appealed, assigning error by the court in the rendition of the judgment.
It is contended by the clothing company that the deposit made with the court clerk constituted a payment of the judgment, and that the casualty company may not be heard to complain of error in the entry of a judgment which it has voluntarily paid. The casualty company asserts that the deposit of $10,000 with the court clerk was, in effect, an offer of payment in settlement and satisfaction of the judgment which the clothing company rejected by taking an appeal. The casualty company further argues that, even if the deposit made with the court clerk be considered as payment, it is not foreclosed from taking an appeal.
It is a settled rule in the federal courts that the payment of a judgment does not bar an appeal therefrom where repayment may be enforced. Cyclopedia of Federal Procedure, 2d Ed., Vol. 10, p. 502, Sec. 5042; Dakota County v. Glidden, 113 U.S. 222, 5 S.Ct. 428, 28 L.Ed. 981; Cramer v. Phoenix Mutual Life Insurance Co., 8 Cir., 91 F.2d 141, ...
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Ten Mile Indus. Park v. Western Plains Service Corp.
...The doctrine ensures that the federal courts will decide only cases involving actual controversy. Leader Clothing Co. v. Fidelity & Casualty Co. of N.Y., 227 F.2d 574, 576 (10th Cir.1955). "Generally an appeal should be dismissed as moot when events occur that prevent the appellate court fr......
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Newman v. Nelson, 7847.
...when repayment may be enforced". See United States v. Featherston, 10 Cir., 325 F.2d 539, 541, citing Leader Clothing Company v. Fidelity and Casualty Company, 10 Cir., 227 F.2d 574, 575. The record before us shows that on February 25, 1964, appellant paid into the registry of the trial cou......
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United States v. Featherston, 7403.
...1016, where repayment or restitution could not be obtained in the event of a reversal. In Leader Clothing Company v. Fidelity and Casualty Company of New York, 10 Cir., 227 F.2d 574, 575-576, we recognized the principles stated in those two cases and held that the payment of a judgment does......
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Harrell v. Dixon Bay Transp. Co.
...right of appeal when such payment shows an intention to abide by the judgment). See also Leader Clothing Company v. Fidelity and Casualty Company of New York, 227 F.2d 574, 576 (10th Cir.1955); Woodson v. Chamberlain, 317 F.2d 245, 246 (4th Cir.1963) (where repayment or restitution cannot b......