Opinion
December 13, 1938.
Action for debt on a bond by the United States against Charles J. Steinberg. An "order and judgment" denying defendant's motion to modify a default judgment was modified, 100 F.2d 124, and plaintiff moves to modify the mandate and remand the cause to the District Court.
Mandate modified so as to reverse judgment and direct defendant to file answer, and cause remanded.
Leon E. Spencer, of New York City, for the motion.
Charles Eno, of New York City (Morton Milman, of New York City, of counsel), opposed.
Lamar Hardy, U.S. Atty., of New York City, for appellee.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
We had assumed that the parties were content to have the merits decided upon this record. The plaintiff objects, however, to a summary conclusion, and it is entitled to require the defendant to file an answer and to have the cause stand for trial or other disposition according to the Rules of Civil Procedure. Our mandate will therefore be modified so as to reverse the judgment and to direct the defendant to file such answer as he may desire within ten days after an order is entered in the district court. The district court will thereupon deal with the issues raised in due form under the rules. The plaintiff has apparently misunderstood our opinion. We did not hold that the Commissioner had "waived" interests, if by "waiver" is meant any conscious surrender; but we did hold that the acceptance of the principal, certainly when made without reservation, forfeited any right to interest. Thus the only "factual support" necessary to the supposititious "waiver" was that the parties understood that the payments were applicable to the installments and that the right to interest was not reserved at the time of their acceptance. So much alone, so far as we can now see, will be debatable in the district court.