The opinion of the court was delivered by: INCH
This is a motion for an order vacating and setting aside a final order and judgment in a condemnation entered and filed with the clerk of this court on the 17th day of March, 1944. This judgment followed a trial before the late Judge Marcus B. Campbell, and said judgment was entered by him. Thereupon, on June 9, 1944, the defendant now making this motion, duly appealed to the United States Circuit Court of Appeals, this Circuit, and this appeal is still pending.
On July 7, 1944, an order was obtained by this defendant extending his time to file his record on appeal and on July 20, 1944, pursuant to a stipulation made and entered into between the attorney for the said defendant and the attorney for the petitioner-plaintiff, United States of America, this defendant obtained a further order from the said United States Circuit Court of Appeals further extending his time for filing his record on appeal.
A week thereafter after having obtained these extensions this defendant now moves to set aside and vacate the said final order and judgment although the aforesaid appeal is still pending.
The motion is denied for two reasons: First, this court has no authority to so interfere with an appeal pending. Berman v. United States, 302 U.S. 211, 58 S. Ct. 164, 82 L. Ed. 204, and cases therein cited. Second, although defendant has sought and obtained the above extensions of time from the representative of the government whom he now claims had no authority to grant them and aside from any such contention, and assuming that this court might act in certain circumstances if granted leave to do so, the ground depended upon by defendant has, in the opinion of this court, no merit.
If the case relied on by defendant, United States v. 1960 Acres of Land, D.C., 54 F.Supp. 867, is the reason for such position taken by him, this court regrets that it is unable to agree with such decision. Nor do I find any sufficient reason presented for any request by this court to the United States Circuit Court of Appeals for leave to entertain this motion. Baltimore S.S. Co. v. Philips, 2 Cir., 9 F.2d 902, 903.
Accordingly, the motion in all respects is denied.
© 1992-2004 VersusLaw ...