Mitchell v. Greenough

Ninth Circuit

Mitchell v. Greenough

100 F.2d 1006

Court of Appeals for the Ninth Circuit·Decided January 16, 1939·No. No. 8874·Published·Cited by 9 cases

Opinion

WILBUR, Circuit Judge.

In his petition for rehearing the appellant contends for the first time that the controlling statute of limitations is sec. 159, par. 2 of Remington’s Revised Statutes of Washington, which fixes a period of-three years, and claims that his action is brought within that period. A party cannot on petition for a rehearing shift his position. Marion Steam Shovel Co. v. Bertino, 8 Cir., 82 F.2d 945; Moss v. Sherburne, 1 Cir., 11 F.2d 579; Bassick Mfg. Co. v. Adams Grease Gun Corp., 2 Cir., 54 F.2d 285.

In view of the fact that we adhere to our conclusion that the complaint does not state a cause of action it is unimportant whether the claim is barred.

Petition denied.

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WILBUR, Circuit Judge.

In his petition for rehearing the appellant contends for the first time that the controlling statute of limitations is sec. 159, par. 2 of Remington’s Revised Statutes of Washington, which fixes a period of-three years, and claims that his action is brought within that period. A party cannot on petition for a rehearing shift his position. Marion Steam Shovel Co. v. Bertino, 8 Cir., 82 F.2d 945; Moss v. Sherburne, 1 Cir., 11 F.2d 579; Bassick Mfg. Co. v. Adams Grease Gun Corp., 2 Cir., 54 F.2d 285.

In view of the fact that we adhere to our conclusion that the complaint does not state a cause of action it is unimportant whether the claim is barred.

Petition denied.

Mitchell v. Greenough, 100 F.2d 1006 (9th Cir. 1939).

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Opinion

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