Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp.

Second Circuit

Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp.

134 F.2d 1022, 1943 U.S. App. LEXIS 3741, 1943 A.M.C. 508

CourtCourt of Appeals for the Second Circuit

DecidedMarch 31, 1943

DocketNo. 87

StatusPublished

Cited by14 cases

This text of 134 F.2d 1022 (Schiavone-Bonomo Corp. v. Buffalo Barge Towing 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.

Bluebook

Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 134 F.2d 1022, 1943 U.S. App. LEXIS 3741, 1943 A.M.C. 508 (2d Cir. 1943).

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Opinion

PER CURIAM.

Rule 38(3) of this court requires an appellee, if he “desires other or further relief than that granted by the decree,” to file an assignment of errors within ten days after the notice of appeal has been filed. The Bouchard Company did not file such an assignment of errors and is in default. However, that is only a default in time, against which it is always possible for a court to reliéve when justice demands. Rule 40 of this court also provides that “on sufficient cause shown” it may allow an appellee to “interpose a new defense”: applications for that relief must be made within fifteen days after the filing of the record. The Bouchard Company failed to “interpose” the defense of the statute of limitations in this court; but again, that was a default only in time. Although the Rules of Civil Procedure have not yet been extended to the admiralty, the policy laid down in Rule 6(b) (2), 28 U.S.C.A. following section 723c, is in accordance with the earlier practice of the courts of equity, and the rule of admiralty is no different. Justice clearly demands that the Bouchard Company, which was at best only secondarily liable, should not be compelled to pay a judgment from which the Buffalo Company has been excused. The decree of this court will therefore dismiss the libel as against both respondents.

Petition for rehearing denied.

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PER CURIAM.

Rule 38(3) of this court requires an appellee, if he “desires other or further relief than that granted by the decree,” to file an assignment of errors within ten days after the notice of appeal has been filed. The Bouchard Company did not file such an assignment of errors and is in default. However, that is only a default in time, against which it is always possible for a court to reliéve when justice demands. Rule 40 of this court also provides that “on sufficient cause shown” it may allow an appellee to “interpose a new defense”: applications for that relief must be made within fifteen days after the filing of the record. The Bouchard Company failed to “interpose” the defense of the statute of limitations in this court; but again, that was a default only in time. Although the Rules of Civil Procedure have not yet been extended to the admiralty, the policy laid down in Rule 6(b) (2), 28 U.S.C.A. following section 723c, is in accordance with the earlier practice of the courts of equity, and the rule of admiralty is no different. Justice clearly demands that the Bouchard Company, which was at best only secondarily liable, should not be compelled to pay a judgment from which the Buffalo Company has been excused. The decree of this court will therefore dismiss the libel as against both respondents.

Petition for rehearing denied.

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Bluebook (online)

134 F.2d 1022, 1943 U.S. App. LEXIS 3741, 1943 A.M.C. 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schiavone-bonomo-corp-v-buffalo-barge-towing-corp-ca2-1943.

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