W. R. Britton v. Dowell, Inc., a Corporation

Tenth Circuit

W. R. Britton v. Dowell, Inc., a Corporation

243 F.2d 434, 1957 U.S. App. LEXIS 2944

CourtCourt of Appeals for the Tenth Circuit

DecidedMarch 23, 1957

Docket5539_1

StatusPublished

Cited by14 cases

This text of 243 F.2d 434 (W. R. Britton v. Dowell, Inc., a Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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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W. R. Britton v. Dowell, Inc., a Corporation, 243 F.2d 434, 1957 U.S. App. LEXIS 2944 (10th Cir. 1957).

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Opinion

LEWIS, Circuit Judge.

Upon an earlier consideration of this case on appeal, 237 F.2d 630, this court set aside a judgment in favor of plaintiff-appellee upon the sole ground that appellee had failed to allege and prove compliance with the provisions of the Oklahoma intangible property tax law, 1 such compliance being a jurisdictional prerequisite to recovery upon a cause of action involving a promissory note. Pfrimmer v. Tidwell, 207 Okl. 605, 252 P.2d 123; Pfrimmer v. Tidwell, 205 Okl. 262, 236 P.2d 978; Edmonds v. White, 203 Okl. 231, 219 P.2d 1007. The mandate read:

“The judgment below is vacated and the cause is remanded to the trial court with directions to determine compliance or non-compliance with the Oklahoma intangible property tax law and to enter judgment in accordance with such determination.” [237 F.2d 632.]

Upon remand to the District Court for the Eastern District of Oklahoma appellant sought leave to amend his answer to plead an alleged new and affirmative defense in the cause. The trial court refused to consider appellant’s motion and, complying strictly to the mandate of this court, limited its inquiry- to the question of appellee’s compliance or non-compliance with the provisions of the Oklahoma intangible property tax law. Upon determination that appellee had fully complied with the requirements of that statute on or before the date this action was originally commenced, the trial court entered judgment for appellee. Appellant now complains of the trial court’s refusal to allow the proposed amendment.

Upon remand from an appellate court with a specific mandate the trial court is limited to the imperative of the mandate and is without jurisdiction *435 to vary or extend it. Bastian v. Erickson, 10 Cir., 114 F.2d 338; Pocono Rubber Cloth Co. v. J. A. Livingston, 3 Cir., 92 F.2d 290. Appellant’s proposed amendment did not affect the issues as limited by the mandate and was properly refused consideration by the trial court.

The judgment is affirmed.

1

. 68 Okl.Stat.1951 § 1515.

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LEWIS, Circuit Judge.

Upon an earlier consideration of this case on appeal, 237 F.2d 630, this court set aside a judgment in favor of plaintiff-appellee upon the sole ground that appellee had failed to allege and prove compliance with the provisions of the Oklahoma intangible property tax law, 1 such compliance being a jurisdictional prerequisite to recovery upon a cause of action involving a promissory note. Pfrimmer v. Tidwell, 207 Okl. 605, 252 P.2d 123; Pfrimmer v. Tidwell, 205 Okl. 262, 236 P.2d 978; Edmonds v. White, 203 Okl. 231, 219 P.2d 1007. The mandate read:

“The judgment below is vacated and the cause is remanded to the trial court with directions to determine compliance or non-compliance with the Oklahoma intangible property tax law and to enter judgment in accordance with such determination.” [237 F.2d 632.]

Upon remand to the District Court for the Eastern District of Oklahoma appellant sought leave to amend his answer to plead an alleged new and affirmative defense in the cause. The trial court refused to consider appellant’s motion and, complying strictly to the mandate of this court, limited its inquiry- to the question of appellee’s compliance or non-compliance with the provisions of the Oklahoma intangible property tax law. Upon determination that appellee had fully complied with the requirements of that statute on or before the date this action was originally commenced, the trial court entered judgment for appellee. Appellant now complains of the trial court’s refusal to allow the proposed amendment.

Upon remand from an appellate court with a specific mandate the trial court is limited to the imperative of the mandate and is without jurisdiction *435 to vary or extend it. Bastian v. Erickson, 10 Cir., 114 F.2d 338; Pocono Rubber Cloth Co. v. J. A. Livingston, 3 Cir., 92 F.2d 290. Appellant’s proposed amendment did not affect the issues as limited by the mandate and was properly refused consideration by the trial court.

The judgment is affirmed.

1

. 68 Okl.Stat.1951 § 1515.

Mark Gannon v. American Airlines, Inc., a Delaware Corporation Associated Aviation Underwriters W. R. Britton, Carroll Britton McBride Bone & Joint Clinic and Dowell, Inc., Carroll Britton v. American Airlines, Inc., a Delaware Corporation, Associated Aviation Underwriters, W. R. Britton, McBride Bone & Joint Clinic, Mark Gannon and Dowell, Inc., McBride Bone & Joint Clinic, a Partnership, and Bone & Joint Hospital, a Corporation v. American Airlines, Inc., a Delaware Corporation, Associated Aviation Underwriters, W. R. Britton, Carroll Britton, Mark Gannon and Dowell, Inc., Dowell, Inc. v. American Airlines, Inc., a Delaware Corporation, Associated Aviation Underwriters, W. R. Britton, McBride Bone & Joint Clinic, Carroll Britton, and Mark Gannon

251 F.2d 476 (Tenth Circuit, 1958)

Gannon v. American Airlines, Inc.

251 F.2d 476 (Tenth Circuit, 1957)

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243 F.2d 434, 1957 U.S. App. LEXIS 2944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-r-britton-v-dowell-inc-a-corporation-ca10-1957.

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