Cahill v. New York, New Haven & Hartford Railroad Company/Opinion of the Court

Respondent filed a motion to recall and amend the judgment in the above-entitled cause, 350 U.S. 898, 76 S.Ct. 180, for the purpose of remanding the cause to the United States Court of Appeals for the Second Circuit for further proceedings. Prior to the filing of this motion, and after the District Court denied an application for a stay of execution, the judgment was satisfied; but petitioner was informed that respondent intended to pursue its remedies notwithstanding payment of the judgment.

The motion of respondent to recall the judgment is granted. It is ordered that the certified copy of the judgment sent to the District Court be recalled and that the judgment be amended so as to provide for a remand of the cause to the United States Court of Appeals for the Second Circuit for further proceedings. Boudoin v. Lykes Brothers S.S.C.o., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Id., 350 U.S. 811, 76 S.Ct. 35; Rule 58(4), Supreme Court Rules, 28 U.S.C.A.

We deem our original order erroneous and recall it in the interest of fairness. Similar relief was requested by respondent in a petition for rehearing, denied in 350 U.S. 943, 76 S.Ct. 300. Rule 58(4) bars consecutive and out-of-time petitions for rehearing. The Boudoin case, however, concerned a motion to recall a judgment that asked for almost identical relief. Yet, if it had been considered a petition for rehearing, it was filed out of time. The grant of the motion in the Boudoin case shows that Rule 58(4) does not prohibit motions to correct this kind of error.

Compare as to mootness, Bakery Sales Drivers Local Union No. 33 v. Wagshal, 333 U.S. 437, 442, 68 S.Ct. 630, 632, 92 L.Ed. 792; Dakota County v. Glidden, 113 U.S. 222, 224, 5 S.Ct. 428, 429, 28 L.Ed. 981. The problems that may arise from demand for repayment are not before us.

Motion granted.

Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice CLARK join, dissenting.