242 F2d 343 Fidelity and Casualty Company of New York v. J Mellott

242 F.2d 343

The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Petitioner,
v.
The Honorable Arthur J. MELLOTT, Judge of the United States District Court for the District of Kansas, Respondent.

No. 5580.

United States Court of Appeals Tenth Circuit.

March 7, 1957.

Willard L. Phillips, Kansas City, Kan., and Jack G. Beamer, Kansas City, Mo., for petitioner.

Before HUXMAN, MURRAH and PICKETT, Circuit Judges.

PER CURIAM.

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1

The Fidelity and Casualty Company of New York has filed a motion for leave to file a petition for a writ of mandamus directed to the Honorable Arthur J. Mellott, Chief Judge of the United States District Court for the District of Kansas. This matter arises out of our decision in Leader Clothing Company, Inc., v. Fidelity and Casualty Company of New York, case number 5180, and Fidelity and Casualty Company of New York v. Leader Clothing Company, Inc., case number 5181. The decision by our court was entered August 3, 1956. See 237 F.2d 7. We reversed the decision of the lower court and remanded the case with directions to proceed in conformity with the views expressed in the opinion.

2

On remand, the trial court set the matter for hearing and after a full and complete hearing entered judgment for Leader for $15,000, together with interest at six per cent from May 13, 1955.

3

Fidelity's application for permission to proceed by writ of mandamus against Judge Mellott is predicated on its contention that the trial court misconstrued our opinion and the mandate of the court. There is no doubt in our minds what the opinion holds or what the mandate required. The trial court correctly interpreted the opinion and the requirements of the mandate and its judgment fully carries out the mandate. Because of these conclusions, setting the motion for leave to file the petition for writ of mandamus for hearing would serve no useful purpose.

4

The motion for leave to file a petition for writ of mandamus in this matter is, therefore, denied and the clerk of the court is directed to enter such an order.