Montgomery v. Realty Acceptance Corporation, 4506.

• Decision Date: 06 July 1931
• Docket Number: No. 4506.,4506.
• Citation: 51 F.2d 642
• Parties: MONTGOMERY v. REALTY ACCEPTANCE CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

51 F.2d 642 (1931)

MONTGOMERY v. REALTY ACCEPTANCE CORPORATION.

No. 4506.

Circuit Court of Appeals, Third Circuit.

July 6, 1931.

Robert H. Richards and Aaron Finger, both of Wilmington, Del. (Thomas J. Crawford and Carl Ehlermann, both of New York City, of counsel), for appellant.

Charles Curley, of Wilmington, Del., and R. Randolph Hicks, of New York City, for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

In the cycle of happenings in this litigation, this appeal, oddly enough, brings here for review an error of our own. As several errors have, necessarily or naturally, followed in the train of our original error, we shall state the case at length in our determination to straighten out the matter and end it once and for all.

Montgomery sued the Realty Acceptance Corporation for breach of a contract for hire running a term of years. A jury was waived and the case tried to the court. On the issue of damages the plaintiff proved his loss without testifying, in mitigation of damages, to money he had earned after his discharge, which, if earned, he was of course bound to state. In the District Court at its March term, 1929, he had judgment for $80,500. That judgment was final and no further action was taken with respect to it until after the term of the judgment when the defendant appealed to this court. In January, 1930, we affirmed the judgment below and thereby disposed, adversely to the defendant, of all questions of law, with none of which are we presently concerned. 51 F.(2d) 636.

The defendant in due course filed a petition for rehearing which operated to stay the mandate. While that petition was pending the defendant by another petition asked leave of this court — the appellate tribunal then having jurisdiction of the case — to apply to the District Court to set aside the judgment and grant a new trial on the single issue of damages because of newly discovered evidence. This evidence as presented by the defendant's verified petition and not controverted by the plaintiff tended to prove that the plaintiff had since his discharge earned a substantial sum of money concerning which at the trial he did not testify in mitigation of damages and that the discovery was made under circumstances which, as to the defendant's diligence, brought it within the rule of after-discovered evidence.

At the argument on the petition for leave, the question whether the trial court, after the term of the judgment, had jurisdiction to open the judgment and retry the case in whole or in part was not raised, nor, aside from the question of jurisdiction, was it shown that the case was one in which, after judgment, a new trial can be had on a single issue. The argument, as usual in such cases, revolved around the new evidence and its after discovery and in the heat of the argument on those restricted issues every one, including ourselves, overlooked the patent fact that the petitioner was asking leave to move the trial court for a new trial after the term of the judgment, and for a new trial on a single issue without showing the case to be of the class in which such a restricted trial is permissible. Gasoline Products Co. v. Champlin Refining Company (C. C. A.) 39 F.(2d) 521; Id., 282 U. S. 824, 51 S. Ct. 76, 75 L. Ed. ___. We granted the defendant leave to ask the District Court at its option to open the judgment and admit and consider the newly discovered evidence solely on the quantum of damages, at the same time suspending the petition for rehearing and staying the mandate. In April, 1930, the learned judge of the District Court feeling that, before he should act on the defendant's motion under our leave, the case should be wholly out of this appellate court and wholly back in his trial court, asked this court to remand the cause and the record for the purpose indicated. In compliance with this request a Circuit Judge, who had not sat in this case on appeal, signed a per curiam order in chambers remanding the case by dismissing the appeal. Then everything was back in the District Court where, on June 30, 1930 — many terms after the term of the judgment — the judge vacated the judgment and granted a new trial on the single issue of damages. Then the plaintiff appealed from that order and for the first time in this court raised the question of the District Court's jurisdiction to open the judgment after the term, not having raised even yet the question whether the case is one in which a new trial may be had on one of several issues. Concurrently with this second appeal the plaintiff moved this court to vacate its per curiam order dismissing the first appeal and prayed that the mandate issue, forgetting for the moment that upon vacating that order the suspended petition for rehearing would automatically be reinstated...