Nachod v. Engineering & Research Corp.

Second Circuit

Nachod v. Engineering & Research Corp.

108 F.2d 594, 43 U.S.P.Q. (BNA) 522, 1939 U.S. App. LEXIS 2618

CourtCourt of Appeals for the Second Circuit

DecidedDecember 22, 1939

StatusPublished

Cited by9 cases

This text of 108 F.2d 594 (Nachod v. Engineering & Research Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Nachod v. Engineering & Research Corp., 108 F.2d 594, 43 U.S.P.Q. (BNA) 522, 1939 U.S. App. LEXIS 2618 (2d Cir. 1939).

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Opinion

PER CURIAM.

Our term having expired since the mandate went down, we have no power to recall it. Bushnell v. Crooke Mining & Smelting Co., 150 U.S. 82, 14 S.Ct. 22, 37 L.Ed. 1007; Scotten v. Littlefield, 235 U.S. 407, 35 S.Ct. 125, 59 L.Ed. 289; Watts, Watts & Co. v. Unione, 2 Cir., 239 F. 1023; Dobson v. United States, 2 Cir., 31 F.2d 288. Rule 6(c) of the Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, does not apply to Circuit Courts of Appeals.

We wish, however, to make plain that there are several questions which we are not deciding. First, we do not decide that the district judge has no power to vacate his order dismissing the complaint against the Automatic Signal Corporation; that we leave to him. Second, if he should vacate that order so that the Signal Corporation again becomes a party, 'we do not decide ■ whether our affirmance of the decree from which the appeal was taken, will prevent his vacating that decree also because of the changed situation that will then arise. That too we leave to him. Third, if our consent is necessary before he may vacate the order from which the appeal was taken, we do not- decide whether we have power to grant that consent, notwithstanding the expiration of the term. That we reserve until it may arise.

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PER CURIAM.

Our term having expired since the mandate went down, we have no power to recall it. Bushnell v. Crooke Mining & Smelting Co., 150 U.S. 82, 14 S.Ct. 22, 37 L.Ed. 1007; Scotten v. Littlefield, 235 U.S. 407, 35 S.Ct. 125, 59 L.Ed. 289; Watts, Watts & Co. v. Unione, 2 Cir., 239 F. 1023; Dobson v. United States, 2 Cir., 31 F.2d 288. Rule 6(c) of the Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, does not apply to Circuit Courts of Appeals.

We wish, however, to make plain that there are several questions which we are not deciding. First, we do not decide that the district judge has no power to vacate his order dismissing the complaint against the Automatic Signal Corporation; that we leave to him. Second, if he should vacate that order so that the Signal Corporation again becomes a party, 'we do not decide ■ whether our affirmance of the decree from which the appeal was taken, will prevent his vacating that decree also because of the changed situation that will then arise. That too we leave to him. Third, if our consent is necessary before he may vacate the order from which the appeal was taken, we do not- decide whether we have power to grant that consent, notwithstanding the expiration of the term. That we reserve until it may arise.

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108 F.2d 594, 43 U.S.P.Q. (BNA) 522, 1939 U.S. App. LEXIS 2618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nachod-v-engineering-research-corp-ca2-1939.

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