SCHOONMAKER, District Judge.
This case involved an automobile collision between two automobiles, one driven by defendant Nonweiler, and one driven by John McCrea, third-party defendant, in which car plaintiff was riding as a passenger. It resulted in a verdict in favor of plaintiff against defendant in the sum of $4650. On the third-party complaint, it resulted in a verdict in favor of John McCrea, the third-party defendant.
At the same trial, the case of John McCrea against defendant Nonweiler, C.A. 1677, was heard, and resulted in a verdict in favor of John McCrea against defendant Nonweiler in the sum of $900.
Both cases have been appealed to the Circuit Court of Appeals, and are now pending there.
The defendant Nonweiler now comes into this court with a petition for leave to pay the judgment of W. H. McCrea in the instant case, and to have that judgment assigned to him so that he may enforce any right of contribution which he may have against the third-party defendant, John McCrea, in case the Circuit Court of Appeals should grant a new trial in the pending appeals.
It seems to us that the effect of granting the petition now before the court, and the payment of the judgment in favor of W. H. McCrea, Jr., would amount to a withdrawal of defendant Nonweiler's appeal, so far as concerns the judgment of W. H. McCrea, Jr.
We therefore are of the opinion that the petition for leave to pay the judgment of W. H. McCrea, Jr., and to have it assigned to Nonweiler, should be presented to the Circuit Court of Appeals where the case is now pending.
For that reason we decline to make the order prayed for, without prejudice to any right Nonweiler may have to apply to the Circuit Court of Appeals for the relief he is now seeking.