Fern

Appellants, Elmer Fern and David Mutchler, appeal from an order of the district court dismissing their second amended complaint on the ground that the cause of action was barred by the Statute of Limitations. The action was brought under Section 13(d) (2) of the Contract Settlement Act of 1944, as amended. 1 The original complaint, filed December 27, 1949, alleged that appellants has contracted orally to haul goods by boat for the United States Army, that the Army had cancelled the contract, and that $15,632.41 had been expended in reliance on the contract. This amount, plus interest, was sought as damages. The complaint was amended by leave of court and on stipulation of parties, so that the prayer was for $35,000, plus interest.

The trial court dismissed this first amended complaint on the ground that it lacked jurisdiction — that the damages sought exceeded $10,000. 2 No appeal was taken from this order, no attempt was made to have the district court set it aside, nor was permission to file an amended complaint sought.

A so-called second amended complaint was filed without leave of court on July 14, 1952. This complaint, as further amended upon stipulation of the parties,…

(concurring).

With one qualification, not significant here, I concur in these opinions, both that of Judge DENMAN and that of Judge HEALY.

In view of Mexican Central Railway v. Duthie, 189 U.S. 76 , 23 S.Ct. 610 , 47 L.Ed. 715 , where the statute applied contained language resembling that in Rule 15(a), I am not prepared to say that leave to amend here could be granted only on an application under Rule 60(b). As suggested in United States v. Newbury Mfg. Co., 1 cir., 123 F.2d 453, 454 , I think we need not decide this point at the present time.

But since appellant made no application whatever for leave to file a second amended complaint, he simply ignored all the rules. It would be hard to frame a more liberal rule than Rule 15, but when a party chooses not to take the steps provided by it, he must take the consequences.

213 F.2d 674 15 Alaska 31 FERN et al. v. UNITED STATES. No. 13633. United States Court of Appeals, Ninth Circuit. May 18, 1954. Maurice T. Johnson, Fairbanks, Alaska, for appellant. Warren E. Burger, Asst. Atty. Gen., E. H. Hickey, Irving Malchman, Attys., Department of Justice, Washington, D.C., Theodore F. Stevens, U.S. Atty., Fairbanks, Alaska, for appellee. Before DENMAN, Chief Judge, and HEALY and POPE, Circuit Judges. DENMAN, Chief Judge. 1 Appellants, Elmer Fern and David Mutchler, appeal from an order of the district court dismissing their second amended complaint on the ground that the cause of action was barred by the Statute of Limitations. The action was brought under Section 13(d)(2) of the Contract Settlement Act of 1944, as amended. 1 The original complaint, filed December 27, 1949, alleged that appellants has contracted orally to haul goods by boat for the United States Army, that the Army had cancelled the contract, and that $15,632.41 had been expended in reliance on the contract. This amount, plus interest, was sought as damages. The complaint was amended by leave of court and on stipulation of parties, so that the prayer was for $35,000, plus interest. 2 The…