Opinion
No. 10449.
Argued March 16, 1953.
Decided March 19, 1953.
Harland I. Casteel, Pittsburgh, Pa., for appellant.
W. Wendell Stanton, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
This case was decided by this Court on June 7, 1951, 190 F.2d 278. There is now before us a motion by the United States Attorney for the Western District of Pennsylvania in which he asks "damages and costs" basing his claim for the most part on alleged injuries suffered by the United States from the delay occasioned by the appeal. These include a loss of profits in the sale of the barge which was the subject matter of the litigation, advertising charges, custody charges and finally, certain court costs for the District Court. The facts and the law applicable are not admitted except as to the court costs.
We think that the appropriate procedure to recover the disputed damages and costs, if they are recoverable, is by a suit against the surety on the bond, as was done in Spruks v. United States Fidelity Guarantee Co., 3 Cir., 1943, 138 F.2d 812.
The motion is dismissed without prejudice to the movant to take the appropriate means to recover the amount claimed.