100 F.2d 1006 - Mitchell v. Greenough — 100 F.2d 1006

How this case has been cited

Cited by 12 later decisions — most recently August 1988

6 federal appellate · 2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1For prior opinion, see 100 F.2d 184.

¶2Before WILBUR, HANEY, and STEPHENS, Circuit Judges.

¶3Walter B. Mitchell, of Spokane, Wash., for appellant.

¶4Ralph E. Foley and A. O. Colburn, both of Spokane, Wash., for appellees Greenough, Foley, Martin, and American Surety Co. of New York.

¶5Post, Russell, Davis & Paine, of Spokane, Wash., for appellees Paine and Webster.

¶6'Charles W. Gillespie, of Spokane, Wash., in pro. per.

¶7Joseph McCarthy, of Spokane, Wash., for appellees LePage and Moe.

¶8Williams & Redfield, of Spokane, Wash., for appellee Fidelity & Deposit Co. of Maryland.

¶9WILBUR, Circuit Judge.

¶10In 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.

¶11In 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.

¶12Petition denied.