Sunrise Mayonnaise v. Swift & Co.

• Decision Date: 18 November 1949
• Docket Number: No. 9341.,9341.
• Parties: SUNRISE MAYONNAISE, Inc. v. SWIFT & CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

88 F. Supp. 187

SUNRISE MAYONNAISE, Inc. v. SWIFT & CO.

No. 9341.

United States District Court E. D. Pennsylvania.

November 18, 1949.

Samuel R. Wurtman, Philadelphia, Pa., for plaintiff.

Richardson Blair (of Ballard, Spahr, Andrews & Ingersoll), Philadelphia, Pa., for defendant.

GANEY, District Judge.

This is a motion for reargument.

In the course of the above mentioned action the defendant posed certain interrogatories to which the plaintiff filed objections, specifically to Interrogatories 2e and 8. The defendant then filed its motion to require the plaintiff to answer interrogatories 2e and 8 accompanied by supporting evidence. Argument was held thereon on July 14, 1949 before Honorable Judge C. C. Wyche, who was sitting in the Eastern District of Pennsylvania, pursuant to an order of June 27, 1949 by the Chief Justice of the United States Supreme Court, his regularly assigned District being the Western District of South Carolina. His assignment in this District was "during the period beginning June 11, 1949, and ending July 23, 1949, and for such further time as may be required to complete unfinished business". On July 20, 1949, six days after the argument, the plaintiff filed its answer to the defendant's motion, and a counter-affidavit. However, at the argument on July 14, 1949, a rough draft of the plaintiff's affidavit was read to the court and the court was advised that the affidavit would be formally filed at a later date. No objection was then made by counsel, and with the court's permission this procedure was accordingly followed. On July 21, 1949, counsel for the defendant wrote to Judge Wyche, who was then sitting regularly in the Western District of South Carolina, stating that the plaintiff's post-argument of the answer and counter-affidavit was prejudicial to the defendant, and asked him to refrain from deciding the matter, and to return it to the Eastern District of Pennsylvania so that the matter could be reargued on the basis of the affidavit and counter-affidavit. Judge Wyche, without replying to this letter, handed down his order denying defendant's motion to require answers to Interrogatories 2(e) and 8, on July 26, 1949 and it was filed on July 27, 1949. Accordingly on August 3, 1949, defendant filed this motion for reargument to require the plaintiff to answer defendant's Interrogatories 2(e) and 8. At the hearing this court raised the question of whether it had power to hear and pass upon the defendant's motion to reargue in view of the fact that Judge Wyche, while acting as a visiting judge in this district, had disposed of the original motion. The court...