United States v. Northwestern Telegraph Co.

• Decision Date: 06 August 1943
• Docket Number: No. 3632.,3632.
• Citation: 52 F. Supp. 973
• Parties: UNITED STATES v. NORTHWESTERN TELEGRAPH CO.
• Court: U.S. District Court — District of Connecticut

52 F. Supp. 973

UNITED STATES v. NORTHWESTERN TELEGRAPH CO.

No. 3632.

District Court, D. Connecticut.

August 6, 1943.

Robert P. Butler, U. S. Dist. Atty., of Hartford, Conn., for the United States.

Carlos S. Holcomb, of Hartford, Conn., for defendant.

SMITH, District Judge.

This case, brought for the recovery of taxes, was tried before the court and judgment entered March 26, 1935, in favor of the defendant, in accordance with findings of fact and conclusions of law filed by the court. On appeal, the judgment of the court was reversed by the Circuit Court of Appeals by mandate filed October 20, 1936. The terms of the mandate in the case were as follows: "It is hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is reversed. You, therefore, are hereby commanded that such further proceeding be had in said cause in accordance with the decision of this Court, as, according to right and justice and the laws of the United States, ought to be had, the said appeal notwithstanding." No further proceedings were had until application made by the plaintiff for judgment for the plaintiff in accordance with the decision of the Circuit Court of Appeals, which application was heard on June 24, 1943, at which time both parties appeared by counsel and were fully heard.

It is the contention of the plaintiff that a formal order should have been entered by the Court vacating the original erroneous judgment for the defendant and allowing the recovery to which the plaintiff was and is entitled under the decision of the Circuit Court of Appeals, that this order should have been entered within a reasonable time after the filing of the mandate of the Circuit Court of Appeals on October 20, 1936, and that October 31, 1936 was a reasonable time by which such order should have been filed.

It is the further contention of the plaintiff that judgment should now be entered nunc pro tunc as of October 31, 1936, in the following amounts:

                         Year  Tax Assessment  Interest
                                                From:      To:       12%        6%
                         1930  $17,999.64       3/15/31  10/24/33  $5633.15
                                               10/24/33  10/31/36             $3260.01
                                                             Total $26,892.80
                

together with interest at six per cent per annum as provided by law on said aggregate sum of $26,892.80 from October 31, 1936 until paid.

There will be, therefore, a substantial difference in the amount now due from defendant to plaintiff depending on whether interest runs to the date of judgment on the principal amount of the tax due at the rates established by statute, or whether interest runs in accordance with plaintiff's contention on a judgment as of October 31, 1936, which already includes a substantial amount of interest then due.

Judgment may be entered nunc pro tunc if the entry of judgment by the court in this case could and should have been done as a ministerial act upon the receipt of the mandate from the Circuit Court of Appeals. Wolfe v. Murphy, 8 Cir., 1940, 113 F.2d 775; certiorari denied, 1940, 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454.

This would be the case if the mandate ordered the entry of a judgment on terms specified in the mandate. Here, however, that is not the case, and at least one additional step is necessary. City of Orlando v. Murphy, 5 Cir., 1938, 94 F.2d 426, 429 —

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