238 F2d 30 Landell Ea v. Northern Pacific Railway Company

238 F.2d 30

99 U.S.App.D.C. 169

George A. LANDELL, Executor of E.A. Landell, Deceased, et

al., Appellants,

v.

NORTHERN PACIFIC RAILWAY COMPANY, Appellee.

No. 13145.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 2, 1956.

Decided Oct. 11, 1956.

Petition for Rehearing In Banc Denied Nov. 2, 1956.

Mr. Robert W. Lishman, Washington, D.C., for appellants.

Mr. Porter R. Chandler, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. Bernard G. Ostmann, Washington. D.C., was on the brief, for appellee.

Before PRETTYMAN, BAZELON and BASTIAN, Circuit Judges.

PER CURIAM.

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1

This case is here a second time. The District Court (Judge Tamm) originally held the action barred by laches, rendering a careful opinion upon the point.1 Landell appealed, and this court affirmed.2 Certiorari was sought but was denied.3 The mandate of this court [99 U.S.App.D.C. 170] issued, and the District Court entered judgment upon it. In doing so it assessed costs. Landell appealed from that judgment, using as procedural justification the feature of costs. Once here, however, he bases the merits of the appeal upon alleged flaws in the findings and other premises upon which the original judgment was based. Those questions are no longer open. Of course a judgment in the posture of this one may be attacked for fraud in its procurement. While appellant clothes his attack in language appropriate to such an issue, no fact remotely suggesting any such infirmity in the present judgment appears here.

2

The order of the District Court upon the mandate of this court is

3

Affirmed.

1 D.C.1954, 122 F.Supp. 253.

2 1955, 96 U.S.App.D.C. 24, 223 F.2d 316.

3 1955, 350 U.S. 844, 76 S.Ct. 85.