Weiss Noodle Company v. Aprile

• Decision Date: 22 December 1959
• Docket Number: No. 13841.,13841.
• Citation: 272 F.2d 923
• Parties: WEISS NOODLE COMPANY, Appellant v. Sandy APRILE, Samuel Bellante, Doing Business as Columbus Macaroni & Noodle Company, Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

272 F.2d 923 (1959)

WEISS NOODLE COMPANY, Appellant v.Sandy APRILE, Samuel Bellante, Doing Business as Columbus Macaroni & Noodle Company, Appellees.

No. 13841.

United States Court of Appeals Sixth Circuit.

December 22, 1959.

Herbert J. Jacobi, Washington, D. C., for appellant.

J. D. Douglass, Cleveland, Ohio (Donald F. Sands, Cleveland, Ohio, on the brief), for appellees.

Before SIMONS and WEICK, Circuit Judges, and WILLIAM E. MILLER, District Judge.

PER CURIAM.

This is an appeal from an order of the District Court which entered a default judgment against plaintiff below dismissing the complaint for failure to answer interrogatories served by the defendants.

Appellant had filed objections to the interrogatories which were overruled by the District Court on October 2, 1958.Under Rule 33 of the Federal Rules of Civil Procedure,28 U.S.C.A.appellant had 15 days thereafter to answer the interrogatories.It did not do so and on October 29, 1958, appellees filed their motion for default judgment which was granted by the Court.

Appellant offered as an excuse the fact that the Clerk of the District Court did not send notice of the order of October 2, 1958, to its trade mark counsel in Washington, D. C. whose name appeared on papers filed June 27, 1958, and thereafter as being of counsel.He had not, however, entered an appearance in the District Court as counsel for the appellant and the Clerk was under no duty to send him any notice.The Clerk fully complied with the Rules by sending notice to all counsel of record.

Counsel of record for appellant(who were the principal counsel in the case) did...