228 F2d 910 Return Company M/v v. Charleston Marine Corporation

228 F.2d 910

The RETURN COMPANY, Inc., owner of the M/V Return, Appellant,



No. 7113.

United States Court of Appeals Fourth Circuit.

Argued Jan. 11, 1956.

Decided Jan. 12, 1956.

Eli Ellis, New York City (Moore & Mouzon; Harold A. Mouzon, Charleston, S.C.; McNutt & Nash, and David I. Gilchrist, New York City, on brief), for appellant.

Augustine T. Smythe, Jr., Charleston, S.C. (Smythe & Smythe, Charleston, S.C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


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This is an appeal from a decree entered on a libel against a vessel for repairs and wharfage. The only question presented is whether there was an abuse of discretion on the part of the trial judge in refusing to set aside and reopen a default and permit the owner and claimant of the vessel to assert a counterclaim against libellant. There is no dispute as to the facts, which were fully found by the court below, and which clearly show that the owner was in default in failing to answer after the expiration of the period agreed upon by counsel following a fruitless attempt at settlement. The court exonerated counsel of neglect in this matter but found that the owner itself was guilty of negligence in failing to follow the advice of New York counsel and furnish to local counsel at Charleston, S.C. information upon which to base an answer. The court further found that the affidavit filed by counsel as a basis for setting aside and reopening the default did not sufficiently establish the existence of a meritorious defense. It is well settled that whether the default should be set aside was a matter resting in the sound discretion of the District Judge, and there is nothing before us upon which we would be justified in holding that he has abused his discretion in this matter.