sheriff in June of 1950 to the date of trial was a matter from which an element of malice might be inferred. This court cannot see how its ruling could be held erroneous. It related to damages only.
On October 10, 1956, more than four months after judgment had been entered on the verdict, Mr. Knox, plaintiff's present counsel, filed some ten additional reasons in support of the motion for a new trial. Defendant says such additional reasons filed later than the ten-day period provided in Rule 59 should not be considered by the court. It is believed that defendant's position is correct. Chief Judge Watson so held in Schuyler v. United Air Lines, D.C., 94 F.Supp. 472, at page 477, and his decision was affirmed in all respects by the Court of Appeals of this circuit at 188 F.2d 968. Counsel for both sides cited several decisions on this point. However, counsel did not cite two cases which the court believes controlling. One is Judge Murphy's decision in Cheffey v. Pennsylvania R. Co., D.C., 79 F.Supp. 252, and the other is the decision of the Court of Appeals for the Seventh Circuit in Fine v. Paramount Pictures, 181 F.2d 300, and particularly the language of the court at page 303:
'A court may not grant a motion for a new trial on a reason assigned after the ten day period for filing and serving the motion has expired.'
It is therefore the position of this court that the reasons assigned by Mr. Knox are not timely presented. However, they have been examined and it is apparent to this court that had they been timely filed the reasons advanced by Mr. Knox would not require a new trial. The reasons advanced by Mr. Knox largely relate to the rulings of the court on the admission of evidence. It is believed that none of the rulings affected the substantial rights of the parties in this case and at the most were harmless error. See Rule 61.
In conclusion, it is the opinion of this court that plaintiff had a fair trial. It is this court's view that upon the whole record plaintiff did not and cannot make out a case of want of probable cause on the part of defendant. It should be mentioned that these parties had reached a point in their transactions where it was a debatable legal question as to their exact legal status. Attorneys might very well differ as to the proper step to be taken by each of them. It is noticed that judges did differ. At first glance it appears that substantial compliance was all that was required of plaintiff in the construction of the houses at the Homesite and that defendant's insistence that the F.H.A. certificates be procured was simply a technicality. From defendant's standpoint however it should be noticed that it primarily contracted for housing facilities for its people for a period of five years. It was willing to pay a substantial subsidy. It was generous toward the plaintiff in the advancement of funds in order that the project be completed. It extended the compliance date. Time was a material element in the contract from defendant's standpoint. It knew that the Prudential Insurance Company was financing plaintiff on an F.H.A. mortgage. If the Federal Housing Administration was not satisfied, the Homesite project was in jeopardy. It is apparent that plaintiff procrastinated toward the end of the completion of the Homesite project. Defendant sought the advice of independent and competent counsel. This is not such a case as warrants recovery for malicious use of legal process.
And Now, this 28th day of November, 1956, the motion of plaintiff J. Dwight Baird to set aside the verdict and judgment entered thereon and to grant a new trial is denied.
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