Opinion
No. 112.
December 9, 1935.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Dallas W. Dietrich against the United States Shipping Board Merchant Fleet Corporation. From an order denying a motion to correct a judgment at law, plaintiff appeals.
Appeal dismissed.
de Forest, Cullom Elder, of New York City (James E. Freehill, of New York City, of counsel), for appellant.
Leo J. Hickey, U.S. Atty., of Brooklyn, N.Y. (William E. Collins, Sp. Asst. U.S. Atty., of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
This is a companion appeal to Dietrich v. United States, 80 F.2d 207, decided herewith. The judgment herein was entered on February 15, 1924, dismissing the complaint. Our mandate of affirmance was filed in the District Court on November 7, 1925. The theory of the motion made on December 14, 1934, was that the judgment of February 15, 1924, did not correctly state the decision of the court or our decision; that instead of dismissing the complaint it should have dismissed it "without prejudice." The court denied this motion and the plaintiff appealed. The only purpose of the motion was to avoid the bar of the judgment herein in the prosecution of the libel in Dietrich v. United States, handed down herewith. As we have already held that that libel was correctly dismissed, this appeal becomes moot; for even though we were to reverse and grant the plaintiff's motion, it is now too late on any theory for it to file another libel. The appeal is therefore dismissed.
Appeal dismissed.