384 U.S. 1004 (1966)

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U.S. Supreme Court


384 U.S. 1004

No. 1274.

Supreme Court of the United States

June 20, 1966

J. P. Harrelson, for petitioner.

Irvine F. Belser, Jr., for respondent.

Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit denied.

Dissenting opinion by Mr. Justice BLACK:

I would grant certiorari in this case. This is another in a growing number of cases in which the Federal Rules of Civil Procedure have been used to prevent the fair and just determination of a lawsuit on the merits. See, e. g., Lord v. Helmandollar, 121 U.S.App.D.C. 168, 348 F.2d 780, cert. denied, 383 U.S. 928, Black, J., dissenting; Riess v. Murchison, cert. denied, 383 U.S. 946, Black, J., dissenting; Link v. Wabash R. Co., 370 U.S. 626, Black, J., joined by The Chief Justice, dissenting. In this case I think the summary judgment entered against petitioner by the District Court and affirmed by the Court of Appeals should be reversed and the case remanded to the District Court so that petitioner can have his day in court. The facts in summary are these. Petitioner supplied respondent with concrete to build some docks and warehouses near Savannah, Georgia. When respondent did not pay for all the concrete sup-

Page 384 U.S. 1004 , 1005

plied, petitioner brought this suit to recover the balance, about $90,000. Respondent moved for summary judgment supporting its motion with several affidavits stating that a large portion of petitioner's concrete was defective. On the day set for hearing petitioner filed three affidavits with the court which asserted that the concrete furnished was not defective and that if it was it became so because respondent's agents had ordered it to be watered down. The District Court, however, refused to consider petitioner's affidavits on the ground that they had not been served 'prior to the day of hearing' as provided by Rule 56(c) of the Federal Rules, and on the basis of the pleadings and respondent's affidavits alone, the court entered summary judgment for respondent. The Court of Appeals affirmed stating that under the Federal Rules the trial court had broad discretionary power either to accept or reject petitioner's untimely affidavits but that the court did not abuse its discretion in rejecting the affidavits. The Court of Appeals went on to state that 'Without the excluded affidavits, little is left to the plaintiff's case-nothing in fact, but the bare allegation in the complaint that [plaintiff] furnished adequate concrete for which it was not fully paid.' Thus for the delay of a new hours-less than one day-in serving affidavits on respondent's counsel, petitioner was deprived of all opportunity to have the court consider its affidavit evidence, which, if true, would have entitled it to collect the $90,000 balance for the concrete supplied.

I find it entirely at odds with a fair system of trying lawsuits to throw out a litigant's case because his lawyer for negligence or some other reason fails by less than 24 hours to satisfy one of many procedural time limits. From the beginning to the end of a lawsuit a lawyer must meet a host of time limits for filing papers. Surely a judge should not have discretion to enter final judgment at will every time a slight lapse occurs which may [384 U.S. 1004 , 1006]

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