Seagram-Distillers Corporation v. Manos, 2672.
| Decision Date | 14 November 1938 |
| Docket Number | No. 2672.,2672. |
| Court | U.S. District Court — District of South Carolina |
| Parties | SEAGRAM-DISTILLERS CORPORATION v. MANOS. |
Stephen Nettles, of Greenville, S. C., for plaintiff.
Price & Poag and W. C. Cothran, all of Greenville, S. C., for defendant.
This matter comes before me on plaintiff's motion for judgment under rule 56 (a) of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c.
Plaintiff commenced this action in September, 1927, to recover the purchase price of two carloads of liquor sold defendant in May and June, 1937. By his answer defendant admitted his indebtedness in the amount stated, but set up two counterclaims. In his first counterclaim defendant alleged that he had an oral contract as plaintiff's distributor at Greenville, South Carolina, on an annual basis; that plaintiff had agreed to sell him its brands of whiskies at the same price it sold to its other distributors; and that it had overcharged him in the sum of Seven Thousand Dollars ($7,000). In his second counterclaim defendant alleged that plaintiff wrongfully took the distributor representation from him in June, 1937, to his damage in the sum of Twenty Thousand Dollars ($20,000). To the first counterclaim plaintiff plead a general denial and the statute of frauds, and to the second counterclaim the same defenses and certain alleged breaches of his distributor's contract by defendant.
Upon call of the case for trial at Greenville at April Term, 1938, counsel for defendant moved for a continuance beyond the term on the ground that defendant was suffering from high blood pressure, and it might endanger his life to attend and testify at the trial. The motion was granted and the case continued until the May Term at Anderson. At that time the same motion was made in behalf of defendant and on the same ground. Counsel for plaintiff resisted the motion, and further urged that if it were granted, it ought to be on terms which afforded adequate protection to plaintiff, and that such protection could best be afforded by giving plaintiff judgment on its claim, which was admitted by the defendant. After considerable argument, at my suggestion, the parties finally agreed to an order providing, "that the case be and it is hereby continued to the October Term at Greenville, at which time it shall be tried regardless of the physical condition of the defendant, but the defendant has leave to take the deposition of J. K. Manos at any time on ten days' notice, same to be used in his behalf at the trial of the case in the event that he is then too ill to attend court."
In agreeing to this order counsel had in mind the fact that the defendant planned to take a trip to Greece during the summer of 1938.
When the civil docket of the October Term was sounded counsel for defendant again moved for a continuance beyond the term. The ground of the motion was that defendant had been prevented from returning for the trial on account of having to undergo an emergency operation for hernia in Athens, Greece. Counsel for plaintiff resisted the motion, and invoked the terms of the above quoted order, and the fact that defendant had failed, against the advice of counsel, to have his deposition taken before he went abroad. The hearing on the motion was adjourned for two weeks, in order to afford counsel for defendant the opportunity to obtain satisfactory evidence of the emergency nature of his operation. In the meantime, however, it developed that the criminal docket would consume the entire October Term, and no civil jury cases could be tried, so that no further hearing was had on the motion, and the case was automatically continued.
Counsel for plaintiff then filed notice of the present motion for judgment on plaintiff's cause of action under the Rules of Civil Procedure for the District Courts of the United States.
Rule 86, 28 U.S.C.A. following section 723c, provides that the Rules of Civil Procedure for the District Courts of the United States shall "govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending," except in such cases where it "would not be feasible or would work injustice" to apply them.
Rule 42(b) provides...
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