Summary
rejecting petitioner's attempt to have evidence certified where it was "not shown that [petitioner] ever applied to the district court, must less that it applied within ten days of the entry of judgment for the amendment of its findings under Rule 52(b)"
Summary of this case from D'Emanuele v. Montgomery Ward Co., Inc.Opinion
No. 9614.
December 20, 1940.
Upon Petition of the United States to Correct the Record.
Proceeding between the United States of America and V.H. (Jack) Kennedy, wherein Kennedy appealed from an adverse judgment, and the United States of America filed petition to correct the record.
Petition denied.
F.E. Flynn, U.S. Atty., of Phoenix, Ariz., and John P. Dougherty, Asst. U.S. Atty., of Tucson, Ariz., for petitioner on motion.
D.V. Mulhern and B.H. Gibbs, both of Phoenix, Ariz., for respondent on motion.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
The appellee's petition asks this court for its order requiring that a portion of the evidence alleged to have been received below be certified to this court and that upon receipt thereof an order be made requiring the district court to make a specified finding favorable to appellee.
The so-called petition is in reality a motion and violates our Rule 17 by failing to state its points and authorities. Appellee also makes no reply to appellant's brief in opposition, thus throwing an unwarrantable burden on opposing counsel and this court, the impropriety being heightened by appellee's taking advantage of our rule to submit the matter without aiding the court by argument.
It is not shown that appellee ever applied to the district court, much less that it applied within ten days of the entry of judgment for the amendment of its findings under Rule 52(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Rule 75(h) gives to the district court and to this court power to correct the record only as to "what occurred in the district court" not to add or cause to be added to the record findings which were never made. This court has no general authority over the district court to require any such judicial act as the making of findings at the request of one not appealing from the district court's action.
The motion is an unwarranted attempt by appellee to "mend its hold" on the appeal after failing to exercise its rights in the district court.
Petition denied.
MATHEWS, Circuit Judge, concurs in the result.