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Z. & F. ASSETS REALIZATION CORP. v. HULL

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA


February 9, 1940

Z. AND F. ASSETS REALIZATION CORPORATION
v.
HULL, Secretary of State, et al. (LEHIGH VALLEY R. CO. et al., Interveners)

The opinion of the court was delivered by: BAILEY

BAILEY, Associate Justice.

On Motion for Reargument or for Order Correcting Opinion.

A final judgment was entered in this cause on January 6, 1940. On the same date both the plaintiff and the intervening plaintiff filed notices of appeal, and on January 10, 1940, each filed a bond for costs on appeal.

 On January 18, 1940, after the notices of appeal and the filing of the cost bond and more than ten days after the date of the final judgment, the plaintiff filed a motion for a reargument, for a vacation of the final judgment, and upon reargument for a reversal of the action of the court, or, in the alternative, for an order correcting the opinion of the court heretofore filed.

 In my opinion the court has no power to entertain a motion of this character after the appeal has been perfected as it was in this case both by notice of appeal and by filing of an appeal bond. Lasier v. Lasier, 47 App.D.C. 80; Purman v. Marsh, 49 App.D.C. 125. Nor was the motion filed within the ten days fixed by the Federal Rules of Civil Procedure, Rule 59 (b), 28 U.S.C.A. following section 723c.

 However, had I the power to do so, I think the opinion should be modified by inserting the words "after the filing of the complaint, but before service of the summons or complaint upon the Secretary of State, the Secretary of State had certified to the Secretary of the Treasury the award of the Commission in favor of the intervener", in lieu of the words "Before the filing of the complaint the Secretary of State had already certified to the Secretary of the Treasury the award of the Commission in favor of the intervenor". This error in the opinion was due to inadvertence and a misunderstanding of what was apparently a conceded fact.

 The motion should be overruled.

19400209

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