Chicago and North Western Ry. v. Union Packing

Full title: CHICAGO AND NORTH WESTERN RAILWAY COMPANY, A CORPORATION, APPELLEE, v…

Court: United States Court of Appeals, Eighth Circuit

Date published: Jan 6, 1976

527 F.2d 592 (8th Cir. 1976)

Opinion

No. 74-1591.

January 6, 1976.

Timothy J. McReynolds, Omaha, Neb., for appellant.

Andrew E. Grimm, Omaha, Neb., for appellee.

Appeal from the United States District Court for the District of Nebraska.

ORDER

Before GIBSON, Chief Judge, CLARK, Associate Justice,^_ and LAY, Circuit Judge.

_ Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

PER CURIAM.

This matter comes on petition of the Chicago and North Western Railway Company to relax our prior mandate¹ to allow prejudgment interest on the judgment entered. Petitioner asserts that prejudgment interest is correctable under Fed.R.Civ.P. 60(a) or, alternatively under Rule 60(b). We decline to reopen the mandate. This circuit does not view the erroneous allowance or omission of prejudgment interest to be a clerical error within the purview of Rule 60(a). See Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969). Alternate relief under Fed.R.Civ.P. 60(b)(1) is denied because the rule requires a Rule 60(b)(1) motion be made not more than one year after judgment was entered. Relief under Fed.R.Civ.P. 60(b)(6) is denied since appellee has failed to show "an [exceptional] situation exists which entitles [it] to relief." Hansen v. United States, 340 F.2d 142, 143 (8th Cir. 1965).

1 See Chicago North Western R.R. v. Union Packing Co., 514 F.2d 30 (8th Cir. 1975).

The petition to relax the mandate is denied.