Opinion
No. 55.
February 13, 1939.
John A. Canavan, U.S. Atty., Robert W. Meserve, Asst. U.S. Atty., both of Boston, Mass., and Jack Garrett Scott and Francis A. Silver, Attys. Interstate Commerce Commission, both of Washington, D.C., for plaintiff.
John J. Siarkiewicz, of Worcester, Mass., for defendant.
This cause came on for a hearing today on the Motion List upon the plaintiff's motion for judgment on the pleadings.
An examination of the papers in the case shows that while the defendant sent in his answer it was not filed. The clerk requested the defendant to forward the requisite fee and on January 9, 1939, the defendant's counsel wrote the clerk, saying in substance, "Please be advised that the defendant Daley no longer desires to contest the petition pending against him and for that reason the deposit of $10 was not forwarded."
Under the circumstances the motion for judgment on the pleadings is not granted. But it would seem that a default may now be entered under Rules of Civil Procedure for District Courts, Rule 55(b)(2), 28 U.S.C.A. following section 723c, upon application therefor by the plaintiff.