Opinion · Court of Appeals for the Ninth Circuit

Mitchell v. Greenough

100 F.2d 1006

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1939-01-16
Topic: antitrust

WILBUR, Circuit Judge. In his petition for rehearing the appellant contends for the first time that the controlling statute of limitations is sec. 159, par. 2 of Remington’s Revised Statutes of Washington, which fixes a period of-three years, and claims that his action is brought within that period. A party cannot on petition for a rehearing shift his position. Marion Steam Shovel Co. v. Bertino, 8 Cir., 82 F.2d 945; Moss v.

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Authority status: pending
Cited by: 12 opinions

MITCHELL v. GREENOUGH,100 F.2d 1006(9th Cir. 1939)

MITCHELL v. GREENOUGH et al.

No. 8874.

Circuit Court of Appeals, Ninth Circuit.

January 16, 1939.

Appeal from the District Court of the United States for the Eastern District of Washington; Charles C. Cavanah, Judge.

On petition for rehearing.

Petition denied.

For prior opinion, see100 F.2d 184.

Before WILBUR, HANEY, and STEPHENS, Circuit Judges.

Walter B. Mitchell, of Spokane, Wash., for appellant.

Ralph E. Foley and A.O. Colburn, both of Spokane, Wash., for appellees Greenough, Foley, Martin, and American Surety Co. of New York.

Post, Russell, Davis Paine, of Spokane, Wash., for appellees Paine and Webster.

Charles W. Gillespie, of Spokane, Wash., in pro. per.

Joseph McCarthy, of Spokane, Wash., for appellees LePage and Moe.

Williams Redfield, of Spokane, Wash., for appellee Fidelity Deposit Co. of Maryland.

WILBUR, Circuit Judge.

In his petition for rehearing the appellant contends for the first time that the controlling statute of limitations is sec. 159, par. 2 of Remington's Revised Statutes of Washington, which fixes a period of three years, and claims that his action is brought within that period. A party cannot on petition for a rehearing shift his position. Marion Steam Shovel Co. v. Bertino, 8 Cir.,82 F.2d 945; Moss v. Sherburne, 1 Cir.,11 F.2d 579; Bassick Mfg. Co. v. Adams Grease Gun Corp., 2 Cir.,54 F.2d 285.

In view of the fact that we adhere to our conclusion that the complaint does not state a cause of action it is unimportant whether the claim is barred.

Petition denied.Page 1010