author: TUTTLE, Circuit Judge:

text:
    John C. RUCKELSHAUS, Successor Trustee in Bankruptcy for Aldridge International Associates, Inc., Plaintiff-Appellant-Cross Appellee, v. BROWARD COUNTY SCHOOL BOARD, Defendant-Appellee-Cross Appellant.
    No. 73-2684.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1974.
    John D. Raikos, Thomas A. Deal, Indianapolis, Ind., Herbert L. Markow, James E. Tribble, Mark Hicks, Miami, Fla., Bamberger & Feibelman, Indianapolis, Ind., John Camp, Jr., Miami, Fla., for plaintiff-appellant.
    James T. Haley,. John L. Britton, Miami, Fla., for defendant-appellee.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This appeal stems from the failure of plaintiff-appellant vendee and defendant-appellee vendor to consummate a contract to purchase property, four parcels known as the “Old Fort Lauderdale High School,” for $1,950,000. The appellant initially made a deposit of $100,000 and the closing date was set for September 14, 1965. At appellant’s request, appellee reset the closing date four times in consideration of the payment of additional deposits totalling $140,000. After repeated closing extensions to January 12, February 11, and April 11, 1966, appellee fixed May 12, 1966 as the last extension. Appellant also failed to meet this engagement. Paragraph 9 of the purchase agreement stated:

“9. If Offeror defaults in any of its agreements contained herein Offeree may retain the sums theretofore deposited with and/or held by Offeree as and for liquidated damages and thereafter both parties shall be relieved of any further liability or obligation hereunder, one unto the other.”

The district court granted summary judgment allowing appellee to retain as liquidated damages the deposits of $240,000 which constituted 12.3% of the contract price of $1,950,000.

The appellant first asserts that the contract was divisible in four parts and that the $240,000 was 40% of the $600,000 amount required for release of one parcel. We readily reject this contention since the contract as a whole calls for the performance of purchase of all four parcels, each purchase integrally related to the other, and sets only one purchase price for the entire tract, $1,950,000.

Appellant’s second argument is likewise groundless. It is virtually the unanimous rule of all jurisdictions that whether a stipulation is for liquidated damages or a penalty is a question of law for the court. Appellant admits that the damages were not capable of accurate ascertainment at the time of the contract, but claims that this Court should relieve against the forfeiture of the $240,000 as unconscionable at the time of the breach.

In this diversity suit, the Florida law controls. The recent case on liquidated damages, Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972) (a vendor action to recover deposit), summarizes the Florida law,

“The better result, in our judgment, as Hyman [Hyman v. Cohen, 73 So.2d 393 (Fla.1954)] contemplates, is to allow the liquidated damage clause to stand if the damages are not readily ascertainable at the time the contract is drawn, but to permit equity to relieve against the forfeiture if it appears unconscionable in light of the circumstances existing at the time of [the] breach. For instance, assume a situation in which damages were not readily ascertainable at the time the contract was drawn, and the parties agreed to a liquidated damage provision of $100,000. Purchaser later repudiated the contract; vendor resold the land to another party, which because of fluctuations in the real estate market, resulted in a loss to himself of only $2,000. In such a case a court following the Hyman theory would allow the liquidated damage clause to stand, because damages were not readily ascertainable at the time of drawing the contract, but would, as a court of equity, relieve against the forfeiture as unconscionable .
“The instant case falls squarely within Hyman. A contract for the sale of land generally suffers from the same uncertainty as to possible future damages as a lease agreement. The land sale market in Florida fluctuates from year to year and season to season, and it is generally impossible to say at the time a contract for sale is drawn what a vendor’s loss (if any) will be should the contract be breached by purchaser’s failure to close. Accordingly, in the instant case we conclude that the damages which the parties could ex-
pect as a result of a breach were not readily ascertainable as of the time the contract was drawn up; therefore, under Hyman, the trial and District Courts erred in construing the liquidated damage provision as a penalty and dismissing the complaint. Moreover, because the definition of ‘readily ascertainable’ in Pembroke v. Caudill, supra [160 Fla. 948, 37 So.2d 538], is incompatible with the rationale of Hy-man, we hereby recede from Pembroke to the extent of such conflict.”

The property in question was subsequently sold for an amount $590,000 below the original contract price. Therefore, the appellant’s arguments that the appellee suffered no actual damages and that thus forfeiture of the $240,000 deposit is unconscionable, are without merit. The appellant’s assertion that the resale price was not established in the record is unfounded. The interrogatories propounded by the appellant to the appellee stated:

“14. Does defendant contend that it was damaged as a result of any default on the part of offeror on account of the result of the non performance of any terms of the said Offer to Purchase ? If so, please state:
(a) Whether such damages are compensable.
(b) The amount of such damages.
(c) The manner and means by which said damages were computed.
(d) If defendant contends that such damages were fixed by agreement and liquidated, the manner and means by which the amount was agreed.”

To which the appellee replied:

“14. Yes.
(a) Yes.
(b) $590,000
(a) The difference between the contract -■ of September, 1964 and the "rtu; ¡ale price in July of 1968. (d) The contract between the defendant and Paris G. Singer contained in paragraph 9 a liquidated damage provision which provided that the seller could retain all sums deposited with it on account of said contract in the event of default.”

Nowhere is the amount of this subsequent sale price disputed by the parties. The appellee also alleged in the summary judgment motions that the property was sold after appellant’s default for $1,360,000, an amount $590,000 below the original contract price, which fact was uncontradicted by appellant, so the trial court was fully apprised of this undisputed fact.

This affirmance is also soundly supported by Beatty v. Flannery, 49 So.2d 81, 82 (Fla.1950) (vendee action to recover deposit), where the Florida Supreme Court held that the plaintiff vendee in default was not entitled to recover the $3,000 deposit on a $30,000 purchase. In adopting the vendor’s contention, the court said:

“It-is well settled that, even in the absence of such a forfeiture provision, a vendee in default is not entitled to recover from the vendor money paid in part performance of an executory contract .
“We recognize that there are exceptions to the general rule that a vendee in default cannot recover, but we find no such circumstances in this case. There was no intimation of fraud on the part of the vendor, nor that the vendee’s failure to fulfill the contract was due to any misfortune beyond his control that gave the vendor a benefit, the retention of which was shocking to the conscience of the court. Nor is it here contended that there was a mutual rescission of the contract.”

See O’Neill v. Broadview, Inc., 112 So.2d 280 (Fla.App.1959) (vendee action to recover deposit), where a Florida court held that the amount provided by the contract as liquidated damages, forfeiture of the $1,500 deposit on a $10,440 contract (14%), was not sufficient to shock the conscience of the court. Cf. Hook v. Bomar, 320 F.2d 536 (5th Cir. 1968), where this court construing Florida law held that the district court was fully justified in its decision that the forfeiture of a $30,000 deposit on a $95,-000 contract (32%) constituted such a penalty as to shock the judicial conscience.

We find no basis for disturbing the district court’s conclusion that the contract provision relating to liquidated damages was valid and enforceable.

The judgment is affirmed.

      . Appellant relied on Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538 (1948) (vendor action to recover deposit), where the court struck down a forfeiture of $6,200 on a $67,500 contract as a penalty. However the authority of Pembroke not only was undermined by Hutchison, but also was distinguished in Beatty, supra at 82, as follows:
      “The Pembroke v. Caudill case, supra . . . relied on by appellants, was not concerned with an attempt by a vendee in default to recover a part payment, but on the contrary involved a suit by the vendor to recover from the vendee an amount stipulated therein to be liquidated damages in the event of default by the vendee. This court expressly stated that ‘We have made no attempt to settle certain questions which may arise under a stipulation similar to the one we have considered, in a ease where a deposit of money has actually been made by the prospective purchase for the benefit of the owner. * * * we express no opinion on the point, because we have no such issue before us.’ As the record in the instant case stands, we do not consider the Pembroke case to be controlling.”


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    Charles R. BALLAS, etc., Plaintiff-Appellant, v. LeRoy E. SYMM, etc., Defendant-Appellee.
    No. 73-1325.
    United States Court of Appeals, Fifth Circuit.
    May 24, 1974.

      Michael Anthony Maness, Mel S. Friedman, Houston, Tex., for plaintiff-appellant.
    Will Sears, David F. Beale, Houston, Tex., for defendant-appellee.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Plaintiff appeals from the District Court’s denial of a preliminary injunction and refusal to treat the case as a class action. Charles R. Balias, purportedly representing a class of potential college student voters in Waller County, Texas, filed suit alleging violations of his constitutional and statutory civil rights by defendant LeRoy Symm, the voter registrar of Waller County. He alleged that Symm selectively used a self-formulated residency questionnaire in determining whether students were residents for voting purposes. Although the case comes to us in a somewhat confused posture and our decision might normally require a remand, both parties have urged us to review the merits and make a final determination as to the use of the questionnaire, the major thrust of this lawsuit. Finding the record sufficient, the issues thoroughly briefed and argued, and the interest of judicial economy compelling, we therefore decide the federal constitutional question presented to us in this case. Specifically we hold that use of the questionnaire to determine the residency of voter registrants unknown to the registrar is not impermissible under the federal constitution and statutes; that the federal question should have been decided even though abstention from deciding questions of state law is proper; and that the class action decision, although not appealable at this time, is rendered moot by our decision.

The precise issue which this suit seeks to determine is whether use of a questionnaire to assist in residency determination by a voter registrar is a violation of the Fourteenth Amendment equal protection clause and the amended 1964 Voting Rights Act because only some voter applicants, but not all, were required to complete the questionnaire.

I.

Balias is a student at Prairie View A & M College, located in Waller County. Wishing to vote in the 1972 general elections, he made timely application to the appropriate official, Symm. As he frequently did when students sought to register, Symm required that Balias complete a “Questionnaire Pertaining to Residence.” It inquired as to the voter applicant’s address, ownership of property, auto registration, phone listing, address on the college’s records, post-graduate plans, and similar matters. After completing the questionnaire (save for several questions, at least one of which he did not understand), Balias was found to be a nonresident and was denied the right to vote. He initiated suit prior to the election on “behalf of himself and the class of persons similarly-denied registration after being required to complete the questionnaire” alleging violations of the Equal Protection Clause of the Fourteenth Amendment and of Section 101(a) of the amended 1964 Civil Rights Act, 42 U.S.C.A. § 1971(a)(2)(A). The complaint is directed at the local questionnaire requirement, which was imposed only on persons not otherwise known to the registrar, and seeks declaratory and injunc-tive relief, plus attorney’s fees.

The District Court, in expedited proceedings, ruled shortly before the election that the case could not proceed as a class action that in any event the class was not entitled to the relief sought, and that the case was appropriate for abstention. Balias v. Symm, 351 F.Supp. 876 (S.D.Tex.1972). Despite these rulings, the Court granted a temporary injunction permitting Balias, individually, to vote in the one election. The court based this relief on the denial of due process in the failure to accord Balias a hearing before final rejection of his application, finally, the court ordered that the case should remain upon its docket for hearing on Balias’ prayer for a permanent injunction, and for consideration of “such further orders or relief as may be appropriate or necessary.” Balias appealed.

The posture of this case makes it confusing as to where our review should begin and what should or should not be'-determined on this appeal. The District Court, after relating the facts and certain procedural improprieties, ruled that the class action was inappropriate. ^ The denial of the class action would normally not be reviewable by an interlocutory appeal. Graci v. United States, 472 F.2d 124 (5th Cir.), cert, denied, 412 U.S. 928, 93 S.Ct. 2752, 37 L.Ed.2d 155 (1973); Gosa v. Securities Investment Co., 449 F.2d 1330 (5th Cir. 1971): After denying leave to maintain a class action, the court proceeded to review the constitutional and statutory, claims of the class and denied relief on the merits. The denial of temporary injunctive relief to a class is reviewable under 28 U.S.C.A. § 1292(a). Next, the court held that even though it had denied class action treatment and had reviewed the merits, abstention was proper due to controlling state law questions. Normally only a final judgment resulting from application of the abstention doctrine could be appealed. See 6 J. Moore, Federal Practice 54.04 (2d ed. 1948). But, after granting temporary relief to Balias individually, the court ordered that the case remain on the docket for a hearing on the permanent injunction and any further necessary and appropriate relief, thus proceeding rather than abstaining.

II.

We begin by reviewing the appropriateness of abstaining because abstention would preclude all rulings on the merits of the case.

Relying on Professor Wright’s discernment of the principles which justify federal abstention, the District Court found two principles controlling:

(a) avoiding a decision of a federal constitutional question where the case may be disposed of [by] questions of state law, and (b) avoiding needless conflict with the administration by a state of its own affairs.

Balias v. Symm, 351 F.Supp. 876, 890 (S.D.Tex.1972). The court characterized the issue as involving the determination of Balias’ residency. Such a determination, it opined, is properly one for the state courts under Article 5.-17a(3) of the Texas Election Code Y.A. T.S. The court reasoned that if Balias were declared a resident under state law, the constitutional question would be moot.

We believe the District Court was correct in abstaining from deciding whether or not Balias was a resident for voting purposes. The state statutes clearly provide a method of challenging in state courts a registrar’s decision of nonresidency. But the issue before the District Court was whether the registrar could selectively use a questionnaire in making his determination of residency. Use of the questionnaire occurs one step before the residency determination is made. It is at this point that the alleged infringement of federal rights occurs regardless of what determination the voter registrar may make as to Balias’ voter qualifications. In other words, Balias claims infringement of a federal right in being subjected to the questionnaire even if he is found to be a resident. The alleged harm is not in the denial of voter registration, but in being required to answer the questionnaire. This presents a federal question over which the District Court cannot properly abstain. The court’s decision concerning this federal question would not be such an interference with the state’s administration of its own affairs to warrant abstention. Indeed the State of Texas has urged in its amicus brief that this Court decide the question to preclude “needless conflict” within the Circuit due to the contrast between Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), cert, denied (1974), and Balias v. Symm, 351 F.Supp. 876 (S.D.Tex.1972).

III.

Upon finding abstention inappropriate, we usually remand the case to the District Court for consideration of the merits. In this case, however, the District Court has addressed the constitutional and statutory questions in its order denying preliminary relief, thus making a remand unnecessary. The review of a denial of preliminary relief is usually made on an abuse of discretion standard. Blackshear Residents Organization v. Romney, 472 F.2d 1197 (5th Cir. 1973); Bayless v. Martine, 430 F.2d 873 (5th Cir. 1970), cert, denied, 406 U.S. 930, 92 S.Ct. 1775, 32 L.Ed.2d 132 (1972). Even if Balias could ultimately prevail on the constitutional issue, he might lose an appeal from denial of a preliminary injunction if such denial were found to be within the discretion of the trial court. In light of the District Court’s discussion of the constitutional and statutory claims in its ruling and the written and oral argument of the points on appeal, however, we will also decide the constitutional merits of the court’s order in the interest of judicial economy.

Balias argues that the questionnaire is an additional test or requirement to be completed prior to voter registration. Although completion of the questionnaire may be required prior to registration, it does not appear from the record to be an additional test or requirement for voter qualification: it is merely a means by which the voter registrar may elicit information pertaining to the residency of the voter applicant. The test for voting is that the applicant be a resident of the state and county in which he seeks to vote. Article 5.02, Texas Election Code, V.A.T.S. The constitutionality of requiring the voter to be a resident has been upheld. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). In Texas, the county collector, who has the responsibility of registering voters, is given the authority to challenge a voter applicant, Article 5.17a, Texas Election Code, V.A. T.S., and require proof of residence, Article 5.21, Texas Election Code, V.A.T.S., prior to registering that applicant to vote. Each question asked on the questionnaire merely concerns an indicia of residence. The eommulative effect of the answers is to support or fail to support the applicant’s assertion of residency. It appears to be nothing more. There is no proof that the questionnaire was used as a device to prevent legal residents from voting.

Several reasons contravene Balias’ argument that the mere use of the questionnaire is unconstitutional or a violation of federal statutes:

First, the fact that the questionnaire is primarily required of student applicants does not necessarily establish an invidious discrimination in violation of the Fourteenth Amendment.

Second, although the Article 5.08(k) rebuttable presumption of student non-residency no longer appertains in Texas because of our decision in Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), cert, denied (1974), students along with all other voter applicants still must be residents in order to become qualified electors.

Third, the evidence unequivocally established that Symm knows approximately 60% of the qualified electors in Waller County, and thus knows of their residency through personal knowledge. He verifies the residency of the remaining voters through one of two ways: inspection of the tax rolls or through information gleaned from the questionnaire.

Fourth since all of the students within Waller County are neither known to Symm nor own taxable property within the county, the questionnaire is used to assist the registrar in determining their residency.

The invidious discrimination argument is mitigated by the District Court’s finding that Symm also required the questionnaire of some non-student applicants whom he did not know and whose name could not be found on the tax rolls. Thus, the “discrimination” is not against students, as such, but against those persons whom the registrar does not know and whom he cannot verify to be residents of the county through alternative means. To require additional information of such persons in order to properly determine their residence does not violate their rights to equal protection under the law but merely permits Symm to carry out his official responsibility.

The procedure utilized by Symm in qualifying voters was not proven to be in violation of the Civil Rights Act, 42 U.S.C.A. § 1971(a)(2)(A), which provides that

(2) No person acting under color of law shall—
(A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote;

The standard for registration is the same for all applicants in Waller County: they must be residents of the state and county. The practices or procedures utilized in determining the residency of applicants appear to be uniform. It is a three step procedure: (1) if the registrar knows an applicant to be a resident of the county through his personal knowledge, he does not challenge the registration; (2) if he does not know the applicant, 'the registrar checks the assertion of residency by inspecting the tax rolls; and (3) if the previous two methods do not reveal any indicia of residency, the applicant is requested to complete the questionnaire to unearth other indicia of residency upon which voter qualification can be based. Residence may be established to the satisfaction of the registrar at any of the three steps. The fact that some applicants may establish their residency at an earlier step than other applicants does not mean that different standards, practices, or procedures are being utilized in contravention of 42 U.S.C.A. § 1971(a)(2) (A).

IV.

Our holding that the questionnaire may be used to assist the registrar in determining the residency of a voter applicant moots the class action question. Since no constitutional or statutory violation flows from the mere use of the questionnaire in determining residency, the rights of persons denied registration after completing the questionnaire have not been infringed. This decision is limited, however, to the determination that the registrar’s use of the questionnaire solely to ascertain residency is valid. We voice no opinion as to the merits of any individual case which might show that Symm’s use of the questionnaire is for other purposes. On the record before us, however, there is no allegation or proof that any class of persons is represented or exists other than those who protest the use of the questionnaire per se.

In summary, we hold that the federal question should have been decided by the District Court. The use of the questionnaire to determine residency is not a violation of the Equal Protection Clause or the Voting Rights Act. The Court was not incorrect in abstaining from deciding state questions of law. There was no error in denying relief to the proposed class. In light of these determinations, the class action question is rendered moot.

Affirmed.

      . The questionnaire asked the following questions : Please print or type your name and address.

        Are you a college student?
      If so, where do you attend school?
      How long have you been a student at such school?
      Where do you live while in college?
      How long have you lived in Texas? In Waller County?
      Do you intend to reside in Waller County indefinitely?
      How long have you considered yourself to be a bona fide resident of AValler County?
      What do you plan to do when you finish your college education?
      Do you have a job or position in Waller County?
      Own any home or other property in Waller County?
      Have an automobile registered in Waller County?
      Have a telephone listing in Waller County?
      Belong to a church, club or some Waller County organization other than college related ?
      If so, please name them.
      Where do you live when the college is not in session?
      What address is listed as your home address with the College?
      Give any other information which might be helpful.

      . This aspect of the District Court order raises the possibility that this is not an appeal from a final order and that this appeal is premature. As an appeal from denial of temporary injunctive relief for the class, however, it would be an appealable interlocutory order under 28 U.S.C.A. § 1292(a)(1).

      . C. Wright, Federal Courts § 52 (2d ed. 1970).

      . In Whatley, this Court held that Article 5.-08 (k), Texas Election Code, V.A.T.S., which established a rebuttable presumption of non-residency as to students, was unconstitutional. The District Court in Balias v. Symm attempted to distinguish Whatley and uphold the statute.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Petitioner, v. Honorable William O. MEHRTENS, United States District Judge for the Southern District of Florida, Miami Division, Respondent. UNITED STATES of America, Plaintiff-Appellant, v. Gary BOWDACH, Defendant-Appellee.
    Nos. 73-2889, 73-2570.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.
    Rehearing Denied June 21, 1974.

      Gary L. Betz, U. S. Dept, of Justice, Miami, Fla., Ann T. Wallace, Atty., Crim.Div., Dept, of Justice, Washington, D. C., for petitioner.
    Daniel S. Pearson, Miami, Fla., Gary Bowdach, Atlanta, Ga., for respondent.
    Ann T. Wallace, Peter M. Shannon, Jr., App. Section, Crim. Div., U. S. Dept, of Justice, Henry E. Petersen, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Gary L. Betz, Dougald D. McMillan, Sp. Attys., Miami, Fla., for plaintiff-appellant.
    William O. Mehrtens, Judge, Daniel S. Pearson, Miami, Fla., for defendant-ap-pellee.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

These consolidated cases present the same issue for review, although raised in differing procedural postures. No. 73-2889 is an original proceeding in which the United States seeks a writ of mandamus to compel the Honorable William O. Mehrtens, United States District Judge for the Southern District of Florida, to vacate his Order Reducing and Modifying Sentence in a Southern District criminal case, United States v. Bowdach, No. 70-632-CR-WM; Case No. 73-2570 is an attempt by the United States to appeal from Judge Mehrtens’ same order, purportedly entered under the authority of Rule 35, F.R.Crim.P., in the criminal action. Thus the cases present a single, admittedly novel, issue for review. We determine that the district court was without jurisdiction to issue the described order, requiring that the writ of mandamus issue. This action moots the direct government appeal from the same order, and we do not decide whether the appeal in No. 73-2570 was authorized by law. Instead, we dismiss it.

A brief review of the underlying criminal case is necessary to understanding of the procedural problem that ultimately developed. On January 27, 1971, Gary Bowdach was sentenced after a non-jury trial and conviction under all four counts of the indictment which consisted of two counts charging violation of Title 18, U.S.C. App., Sec. 1202(a)(1) (possession of a firearm by a convicted felon) and two counts charging violations of Title 26, U.S.C. Chapter 53: by possession of a silencer for a firearm (defined as a “firearm” by Title 26 U. S.C. Sec. 5845(a)(7): (a) not registered in violation of Secs. 5861(d) and 5871 (the penalty provisions) and (b) not identified by a serial number in violation of Sees. 5861(i) and 5871. Concurrent confinement sentences of one year were imposed on the two firearms counts, and concurrent confinement sentences of five years on the two silencer counts. On appeal, United States v. Bowdach, 5 Cir. 1972, 458 F.2d 951, this court reversed the convictions on the first two counts, on the authority of United States v. Bass, 1971, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488. The concurrent five year sentences for possession of the silencer were affirmed.

The events critical to the disposition of these cases ensued. On July 10, 1972, the mandate from this court reversing Bowdach’s conviction on the two firearms counts and affirming conviction on the two silencer counts was received in the Clerk’s office for the Southern District. On July 18, 8 days later, Judge Mehrtens entered an Order On Mandate making the mandate of the court of appeals an order of the district court. On November 15, 1972, the district judge received a letter from Bowdach, who was incarcerated in Atlanta, Georgia, requesting -that his sentence under the affirmed counts be modified. Judge Mehrtens treated the correspondence as a motion for modification of sentence under F.R.Crim.P. 35. Ultimately, on June 8, 1973, the judge ordered that the five year concurrent sentences be modified and limited to the time actually served, and that Bowdach be released upon one year’s probation. The government moved the district court to reconsider and set aside its order of modification, which motion was denied. That denial order, dated June 27, 1973 is the order appealed from in No. 73-2570. On July 3, 1973 the judge denied a stay of execution of his modification order.

Thereafter, on August 6, 1973, the government filed its petition for writ of mandamus in this court which was docketed as No. 73-2889. That petition was originally denied by an administrative panel of this court, which after the government filed a petition for rehearing with a suggestion for rehearing en banc thereafter vacated the denial of mandamus and consolidated the case, No. 73-2889, with the appeal in No. 73-2570. In due course, the consolidated cases came on for oral argument before the present panel. We entertain considerable doubt regarding our right to review the district court order on direct appeal, as noted by the administrative panel in its order consolidating these cases. We do not decide this thorny jurisdictional question in No. 73-2570. Rather, we dispose of the issue presented by granting the petition for writ of mandamus. This renders the appeal in No. 73-2570 moot.

The issue for determination, which is not without difficulty, is when does the 120 day time limit for filing motions for modification of sentence after mandate of affirmance commence to run under F.R.Crim.P. 35. That rule provides, as far as pertinent here:

The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, .

The 120 day time limit commences “after receipt by the court” of a mandate, and the United States argues that the mandate reversing in part and affirming in part Bowdach’s convictions was “received” by the court when it was lodged with the district court clerk’s office on July 10, 1972. This interpretation would clearly put the letter from Bowdach to Judge Mehrtens, which was treated as a motion for modification and filed on November 15, 1972, beyond the 120 day limit. Judge Mehrtens responded to this proposition in his order denying reconsideration of the modification order by stating that the mandate was “received” on July 18, 1972, the date on which he entered an order making the Court of Appeals mandate the order of the district court. Counsel for Bowdach defends that interpretation, which would put Bowdach within the 120 day limit by several days. For reasons outlined below, we adopt instead the interpretation advanced by the government and grant the writ in order to direct that the lower court vacate its order as granted without jurisdiction.

In construing the disputed portion of Rule 35, we look first to what we consider the most logical interpretation of the words “receipt by the court” in light of what actually takes place when an appellate court mandate issues. Bowdach argues that “court” means precisely that, and to construe it as “clerk of the court” instead of the district judge does violence to the meaning of the word. But to us the key to what “court” means in this context is that it is coupled with the word “receipt”. A mandate is received only by the clerk with whom it is filed. When it was brought to his attention, presumably by Bowdach’s letter, the judge issued an order which adopted the mandate. That is by no means the equivalent of receiving the mandate. In short, greater violence is done to the plain meaning of language by attempting to equate “receipt of mandate” with “issue an order on mandate” than by construing “court” to mean “clerk of court”, the actual recipient of the mandate, and of course the functionary with whom papers are customarily and historically filed and docketed.

This view is supported by the history of Rule 35. As the United States points out on brief, the drafters of Rule 35 were most interested in assuring definiteness and clear lines of demarcation so that all concerned would know exactly when the time for filing would expire. Brief for petitioner at 4-6 (Proceedings of the Institute on the Federal Rules of Criminal Procedure). This purpose runs directly counter to the interpretation urged by Bowdach, since the issuance of an order on mandate by the district judge may come at any time after receipt by the clerk. It would have been highly inconsistent for the drafters of Rule 35, whose purpose was to insure a definite time limit, to designate a time for commencement which is wholly discretionary with the district judge. There exists no basis for imputation of such a contradictory and self-defeating position to those who formulated the rule.

The essence of Bowdach’s counter-argument is that other rules distinguish specifically between “court”, meaning the judge, and “clerk of court”, and that Rule 35 should be treated no differently. See, e. g., F.R.Crim.P. 20, 32, 56 and 57. There is merit in the point, but we feel that it is outweighed by the considerations discussed above. Our confidence in the correctness of our disposition is bolstered slightly by the fact that, despite occasional distinctions in the rules, members of the legal profession customarily refer to the clerk as the court in a procedural context.

One final point remains. Bowdach asserts on brief that, should we find his letter and the judge’s order thereon to have been untimely under Rule 35, a remand is in order to permit him to advance for the district court’s consideration any exceptional circumstances contributing to the delay. We recognize that the Supreme Court has indicated that the rules of criminal procedure should not be considered inflexible, and that a defendant may on occasion be excused from untimely action if he demonstrates exceptional circumstances leading to the delay. Fallen v. United States, 1964, 378 U.S. 139, 84 S. Ct. 1689, 12 L.Ed.2d 760 (untimeliness of notice of appeal under F.R.Crim.P. 37(a)(2) excused under circumstances where appellant because of bodily infirmity was transferred immediately after sentence from the hospital where he was confined to a federal penitentiary and there sequestered during the 10 day appeal period). At least one circuit has adopted this approach with respect to an untimely motion under Rule 35. Dodge v. Bennett, 1 Cir. 1964, 335 F.2d 657. However, no such grounds were alleged in the district court, nor have any been advanced here. Assuming without deciding that we have the power to remand a cause for determination of circumstances which might have worked in the prisoner’s favor, but which were relied upon in neither the district court nor in this court, we decline to exercise such power here.

Because we find that the district court was without jurisdiction to grant the motion for modification of sentence, writ of mandamus is ordered to be issued in Case No. 73-2889, directing the court below to vacate its orders of June 8 and June 27, 1973 modifying Bowdach’s sentence under the unlawful possession of silencer counts (Counts III and IV) of the indictment in the district court’s case No. 70-632-CR-WM.

Appeal dismissed in No. 73-2570; writ of mandamus ordered to issue in No. 73-2889.

      . The parties appear to agree, and we concur, that the 120 day time limit is jurisdie-tional. United States v. Granville, 5 Cir. 1972, 456 F.2d 1073.

      . Formal issuance of the writ is not deemed necessary to assure the district court’s compliance. A copy of this opinion issued as a mandate should suffice.


author: JOHN R. BROWN, Chief Judge:

text:
    Edward SEXTON, Petitioner-Appellee, v. Jack H. WISE, Warden, Federal Correctional Institute, and United States of America, Respondents-Appellants.
    No. 73-1460.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1974.

      Frank D. McCown, U. S. Atty., Ft. Worth, Tex., William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., for respondents-appellants.
    James A. Johnston, Dallas, Tex., for petitioner-appellee.
    Before BROWN, Chief Judge, and .RONEY and GEE, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

This appeal presents the question of whether prison officials must provide notice and a hearing to a prisoner, granted a future date for parole but not yet at liberty, whose parole was summarily rescinded. The District Court held an evidentiary hearing and ordered that Sexton’s writ of habeas corpus be granted, unless within 60 days the Youth Correction Division of the Board of Parole provide a hearing with due process as outlined in Morrisey v. Brewer, 1972, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484. We hold that Sexton was not entitled to a hearing since the process of obtaining parole had never reached completion and the due process protections of Morrisey v. Brewer, applicable to revocation, were not applicable. Accordingly, we reverse and remand the judgment of the District Court.

Appellee Sexton was convicted and sentenced to custody of the Attorney General under the Youth Correction Act (18 U.S.C.A. § 5010(b)). Officials of the Federal Correctional Institution at Seagoville, Texas, approved Sexton for the “Work Release Program” for federal prisoners and he was assigned to begin working for Mr. Ray Bostick on September 29, 1972. According to Sexton’s testimony, he worked for Mr. Bostick approximately three weeks. Without notifying prison officials, as the express terms of the release and regulations prescribed, Sexton left his job with Mr. Bostick to begin a new job with an employer who was not an approved work release employer. Sexton admitted that he knew leaving an assigned job without permission of the Warden was a violation of the Work Release Program.

Without knowledge of this unauthorized change in employment, the Youth Correction Division Executive issued a certificate of parole on November 7, 1972 ordering Sexton be paroled on November 16, 1972. Sexton signed the accompanying conditions of the parole certificate on November 12, 1972. At a date prior to November 14, 1972 the Warden, Jack H. Wise, signed the release with the accompanying statement that Sexton “was released on the 16th day of November, 1972,” the only date appearing on the form.

When Sexton’s violation of the Work Release Program came to light on November 13, 1972 a Bureau of Prisons Incident Report was drawn up by local prison officials. The U.S. Board of Parole Youth Division Executive Branch in Washington, D.C. was notified of the violation on November 14, 1972.

Sexton was informed of a violation report by a case worker at the Institution on November 13, 1972 and learned he was not going to be paroled. Sexton testified that he never received any written notice' of the alleged violations which precipitated the loss of his parole. A meeting of the Youth Correction Division followed on November 28, 1972 but Sexton was given no notice to appear nor was he given any written statement of the charges against him. Sexton’s parole was officially rescinded at this hearing.

Since Sexton was never officially paroled, and the actions taken did not amount to a revocation, we do not reach the issue of the constitutionality of the November 28, 1972 meeting conducted by the Youth Correction Division of the Board of Parole. Until a parole is finalized, no constitutional protections associated with a parole revocation embrace the intended parolee.

It is well settled that eligibility for parole is within the wide latitude of discretion vested in the Board of Parole. Thompkins v. U. S. Board of Parole, 5 Cir., 1970, 427 F.2d 222; United States v. Frederick, 3 Cir., 1968, 405 F.2d 129; Walker v. Taylor, 10 Cir., 1964, 338 F.2d 945. The Regulations for paroling a prisoner sentenced under the Youth Correction Act, supra, provide that the Youth Correction Division may conditionally release a prisoner after reasonable notice to the Director of the Bureau of Prisons. (28 C.F.R. § 2.6). Notice of a future date for release on parole, however, does not bestow upon the intended parolee a right to that parole prior to final physical release by the Bureau of Prisons. Before a prisoner can be officially paroled, the final step of physical release must be taken.

While a prisoner remains in the custody of prison officials, he continues to be subjected to their supervision and the wide discretion of the Board of Parole. The Regulations are clear that until final physical release occurs, the Board does not relinquish its broad discretionary powers to rescind any future parole. (28 C.F.R. § 2.20).

§ 2.20 Release; discretionary power of Board.
When an effective date has been set by the Board, release on that date shall be conditioned upon continued good conduct by the prisoner and the completion of a satisfactory plan for his supervision. The Board may, on its own motion, reconsider any case prior to release and may reopen and advance, postpone, or deny a parole which has been granted. The Board may add to or modify the conditions of parole at any time.

The Board never gave up its custody of Sexton and therefore could properly rescind his conditional parole without affording him a full Morrisey hearing. The notice of denial was not tantamount to a revocation of parole invoking full constitutional safeguards. To require a full Morrisey hearing at this stage would be an extravagant remedy infringing on the discretionary powers of the Board of Parole.

Reversed and remanded.

      . The District Court record reflects that Mr. Bostick told the Government attorney that Sexton ceased working for him on October 7, 1972. This would have made Sexton’s term of employment with Mr. Bostick just over one week.

      . At the District Court hearing, Associate Warden Walter L. Lumpkin, explained why Warden Wise’s signature appeared on Sexton’s release with the date November 16, 1972 and the statement that Sexton was to be released on that date. For administrative convenience, it was the general procedure of the Bureau of Prisons to execute Certificates of Parole in advance of the actual release date. In this instance Warden Wise signed sometime prior to November 14 since he expected to be absent and was in fact absent from the Institution on November 16, 1972.

      . The Federal Correctional Institution at Seagoville, Texas, provided a team of five case workers wlio submitted recommendations for parole to the local parole Judge who was a member of the Parole Board.


author: BELL, Circuit Judge:

text:
    In the Matter of HATFIELD CONSTRUCTION COMPANY, Bankrupt. John A. BLACKMON, as Revenue Commissioner of the State of Georgia, Appellant, v. Richard M. NICHOLS, Trustee, Appellee.
    No. 73-3403.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.
    Gary B. Andrews, Asst. Atty. Gen., Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, Ga., for appellant.
    Richard M. Nichols, Macon, Ga., for appellee.
    Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.

       Hon. Bailey Aldricli, Senior Circuit Judge of the First Circuit, sitting by designation.

   BELL, Circuit Judge:

This appeal arises out of a bankruptcy proceeding. The petition of the Commissioner of Revenue of the State of Georgia to reclaim funds collected by the trustee herein as sales tax was denied by the bankruptcy court. The district court, 361 F.Supp. 468, affirmed. We reverse.

The sales tax in question was derived from an auction sale in liquidation of the bankrupt’s tangible personal property. The agent of the Commissioner of Revenue was present and insisted on sales tax being collected on each item as sold. The trustee permitted the agent to collect the tax on the condition that it be remitted to the trustee. The purchasers paid the sales tax in issue to the agent in the total of $1,015.71, which sum was handed over to the trustee. The funds were then placed in the account of the trustee where they remain.

Both the bankruptcy and the district courts acted on the assumption that the sales in question were subject to the Georgia Retailers’ and Consumers’ Sales and Use Tax Act, Ga.Laws 1951, p. 360, as amended by Ga.Laws 1960, pp. 153, 154. Ga.Code Ann. § 92-3402a. We required additional briefs on this question and have concluded that the sales, on the appertaining facts, were subject to the Act and the regulations promulgated pursuant thereto. See Newscop-ters, Inc. v. Blackmon, 1971, 125 Ga.App. 130, 186 S.E.2d 759 (liquidation sale). See also Georgia Revenue Regulation No. 560-12-1-.07, Utf 2(c), (3) and (4) (casual sales).

The question presented is whether the state was entitled to the taxes collected. The bankruptcy judge held that the trustee functioned as an agent of the bankruptcy court and thus could not be subjected to the Georgia Act, for the reason that this would be an unconstitutional state interference with the federal bankruptcy process, and was in opposition to the congressional purpose reflected in 28 U.S.C.A. § 960.

On review, the district court agreed that the Georgia Act was an impermissible burden on the bankruptcy process. The court was also of the view that 28 U.S.C.A. § 960, applied only to a trustee conducting the business of the bankrupt as distinguished from the liquidation of the bankrupt’s estate. Therefore, the court reasoned, the statute, by not commanding the payment of the sales taxes in question, had the effect of precluding their collection.

We find no controlling authority on the question in issue; in either the Supreme Court or this court. We begin with the proposition that the liability for sales tax under the Georgia Act is imposed primarily on the purchaser with secondary liability on the seller to collect and remit the tax. See Newscopters, Inc., supra; Hawes v. Phillips, 1970, 122 Ga.App. 714, 178 S.E.2d 759; Under-cofler v. Capital Automobile Company, 1965, 111 Ga.App. 709, 143 S.E.2d 206.

In this connection the well reasoned opinion of the Court of Appeals for the Second Circuit in the case of In re Leavy, 2 Cir., 1936, 85 F.2d 25, is persuasive. The court there held that a bankruptcy liquidation sale was subject to the New York City Sales Tax Act. The court pointed out that primary liability for the tax was imposed on the purchaser with secondary liability on the seller, the precise situation under the Georgia Act. The Second Circuit had the following to say in concluding that the sales tax was not an undue burden on the bankruptcy process:

“The purchaser at the judicial sale was only required to pay the same tax he would have been bound to pay if he had purchased from anyone else. What the trustee is really complaining of is, not that a burden has been imposed upon the exercise of his functions, but of his inability to sell to a purchaser who would be exempt from a tax and because of such an exemption would pay a higher price to him than would ordinarily be paid for the goods sold. It seems unreasonable to treat the absence of an exemption from taxes as a burden upon the normal exercise of governmental function.”

In Leavy the trustee had not actually collected the tax and the court ordered, payment out of the assets of the estate. Here, as noted supra, an agent of the Commissioner was permitted to collect the tax but on condition that it be handed to the trustee.

The decision of the Ninth Circuit in California State Board of Equalization v. Goggin, 9 Cir., 1957, 245 F.2d 44, is to the contrary. That court held that a state sales tax could not be imposed in any form upon a liquidation sale in bankruptcy. The fact that the tax was paid by the purchasers was not considered as relevant. Like the district court here, the court also saw 28 U.S.C.A. § 960, as expressing an intent on the part of Congress to limit the imposition of the state taxing process to those instances where a trustee is actually engaged in business, as distinguished from the liquidating function.

We do not read this statute as precluding or limiting the state taxing process in the circumstances obtaining here. Indeed, it has been long settled that property in the hands of a trustee in bankruptcy is not thereby exempt from state and local taxes, absent a clear expression from Congress to the contrary. Swarts v. Hammer, 1904, 194 U. S. 441, 24 S.Ct. 695, 48 L.Ed. 1060. Section 960 is not such a clear expression, at least where the tax on the liquidating function is imposed on the purchaser in liquidation. This was the view of the Second Circuit in heavy, supra, and it is a view tangentially supported by Missouri v. Gleick, 8 Cir., 1943, 135 F.2d 134, where a liquidation trustee was held liable for Missouri unemployment tax. See also In re Mid America Co., S. D.Ill., 1939, 31 F.Supp. 601, 606; In re Loehr, E.D.Wis., 1950, 98 F.Supp. 402; Note, State Taxation of Bankruptcy Liquidation: Federalism Misconceived, 67 Yale L.J. 335 (1957); Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv.L.Rev. 1141, 1166 (1942). Contra: 4A Collier on Bankruptcy, 70.97 [4] ; Paskay, Handbook for Trustees and Receivers in Bankruptcy, § 14.005; Note, Bankruptcy Sale as a Judicial Sale Free from Taxation, 1 Journal of Public Law 504 (1952); Maclaehlan, Bankruptcy 349 (1956). Collier recognizes an exception based on the heavy case where the trustee is merely a collecting agent of the sales tax. 4A Collier, p. 1145, n. 41.

It may be true that although, in its legal incidence, the sales tax is on the purchaser, it has an indirect economic effect upon the bankrupt estate in that the purchaser, assumedly, would have been willing to pay more had he not been obliged to satisfy the tax. Such an indirect economic detriment is not an impermissible burden even were the estate a government instrumentality. Cf. Graves v. New York ex rel. O’Keefe, 1939, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927. Here, however, those ultimately affected are but creditors of the bankrupt. The only burden on the trustee is the collection and remission of the tax, which we could not consider consequential.

Reversed and rendered.

      . It is to be noted that sales in liquidation are exempt under these regulations under certain conditions. The trustee here did not comply with these conditions.

      . “Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”

      . The bankruptcy court did not decide just what would be done with the funds on hand, stating:
      “It need not be said here what the trustee should do with this money except to say since the Commissioner was not entitled to insist upon it in the first instance he is not entitled to insist upon it now.”


author: PER CURIAM:

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. The VERNE-WOODROW COMPANY and Occupational Safety and Health Review Commission, Respondents.
    No. 73-3134
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.

      Walter H. Fleischer, Stanton R. Koppel, Civil Div., Appellate Section, Dept, of Justice, Washington, D. C., for petitioner.
    W. V. Woodrow, pro se.
    William S. McLaughlin, Exec. Secretary, Occupational Safety and Health Review Commission, Washington, D. C., for the Commission.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

This appeal is taken from a final order of the Occupational Safety and Health Review Commission, vacating a citation and proposed penalty issued by the Secretary of Labor against Verne-Woodrow Company for violating 29 C. F.R. 1926.105(a). We reverse.

This ease is controlled by our decision in Brennan v. Southern Contractors Service Company and Occupational Safety and Health Review Commission, 492 F.2d 498 (5th Cir. 1974). There, as here, it was uncontroverted that the employer had failed to provide its employees working at a height over 25 feet above ground with one of the safety devices listed in 29 C.F.R. 1926.105(a). There, as here, the Secretary’s expert witness testified the use of safety belts was practical at the employment site. And finally, there, as here, the Commission countermanded the Secretary, holding that where it is practical to use a safety belt, an employer who fails to do so nevertheless is not in violation of 29 C.F.R. 1926.105(a). This court having previously rejected the 'Commission’s strained construction of the regulation in Southern Contractors, we are compelled to reject it now.

Accordingly, the order of the Commission is reversed and the case is remanded with directions to reinstate the citation and penalty imposed by the Secretary of Labor.

Reversed and remanded with directions.

      . This appeal is authorized by 29 U.S.C. § 660(b) (Supp.1972-73).

      . 29 C.F.R. 1926.105(a) (1973) provides as follows:
      “(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.”


text:
    Charles W. HOWARD, Jr., Plaintiff-Appellant, v. VULCAN MATERIALS COMPANY, Defendant and Third Party Plaintiff-Appellee, v. AAA CONTRACTING COMPANY, INC., Third Party Plaintiff and Third Party Defendant-Appellant, v. The TRAVELERS INSURANCE COMPANY, Third Party Defendant and Intervenor-Appellant-Appellee.
    No. 74-1469
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.
    William A. Norfolk, Baton Rouge, La., for Travelers.
    Thomas E. Cooper, Jr., Rayville, La., Jack C. Benjamin, New Orleans, La., for Howard.

      Sam J. D’Amico, Baton Rouge, La., for AAA Contracting.
    Emile C. Rolfs, III, Calvin E. Hardin, Jr., Baton Rouge, La., for Vulcan.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Appellant Howard brought this tort action against Vulcan Materials to recover for personal injuries suffered while engaged in waste disposal activities at Vulcan’s plant. At the time he was employed by AAA Contracting Co., which contracted to perform various tasks for Vulcan. The issue is whether Howard was a statutory employee of Vulcan for the pui’poses of the exclusive liability provisions of Louisiana’s Workmen’s Compensation Act, La.Rev.Stat. Ann. § 23:1-021 et seq. Concluding that he was, under the undisputed facts, the district court granted Vulcan’s motion for summary judgment. We affirm.

Section 23:1061 of the Louisiana compensation act provides that a contractor’s employees are to be treated as employees of the principal employer where the contractor performs work which is a part of the “trade, business, or occupation” of the principal. Louisiana and Fifth Circuit cases have clearly established that contracted work is a part of the principal’s “trade, business, or occupation” if it is so necessary to its operation that, save for the contractor, it “would have to hire workers of its own to perform the task.” Cole v. Chevron Chemical Co., 5 Cir., 1973, 477 F.2d 361, 365. See also, Duhon v. Texaco, Inc., 5 Cir., 1974, 490 F.2d 91; Leger v. Amerada Hess Corp., 5 Cir., 1973, 479 F.2d 1250; Foster v. Western Electric Co., La.App., 1972, 258 So.2d 153; Goodwin v. United States Rubber Co., La.App., 1966, 186 So.2d 356.

Under these cases, Howard was a statutory employee of Vulcan, since the disposal of waste generated by the plant’s normal operations was so necessary that in the absence of an available contractor Vulcan would have to, and in fact did, use its own employees to perform the task.

There remains the claim by AAA against its insurer for the costs of its defense in this proceeding. This claim fell victim to summary judgment, without opinion and before judgment on the principal complaint, and AAA appeals. We remand for further consideration by the district court in light of our disposition of the principal claim.

Affirmed in part and remanded in part.


text:
    Eugene 2X JONES, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 71-1017.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.

      Joseph Maxwell Williams, III, Tampa, Fla. (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Richard C. Booth, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Before MOORE , AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   PER CURIAM:

Eugene Jones pled guilty to armed robbery and was sentenced to life imprisonment by a Florida State Court. Later, he collaterally attacked his conviction, obtained an evidentiary hearing, and ultimately exhausted his state remedies without achieving his release. His subsequent petition for habeas corpus relief was denied by the United States District Court on the basis of the state court evidentiary hearing.

A complete review of the state transcript convinces us that Jones was given a full, fair and impartial evidentiary hearing in the state court as to his waiver of counsel which incorporated the issues concerning his confession and his guilty plea. Under Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the District Court was correct in not requiring an additional eviden-tiary hearing when the issues raised in the petition for writ of habeas corpus were the same as those fully and fairly developed during the state court proceeding. The state record amply supports the conclusion that Jones’ confession was not coerced, that his guilty plea was voluntary and intelligent, and that he knowingly and voluntarily waived counsel. This Court cannot review the credibility choices made by trial courts

Affirmed.


text:
    Clifton Ralph CRAMER, Petitioner-Appellant, v. Jack H. WISE, Warden, Federal Correctional Institute, Respondent-Appellee.
    No. 74-1174
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    May 30, 1974.

      Clifton Ralph Cramer, pro se.
    William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Clifton Ralph Cramer was convicted after a jury trial on fifteen counts of mail fraud, in violation of 18 U.S.C. § 1341. He was sentenced to the custody of the Attorney General pursuant to 18 U.S.C. § 5010(b) of the Federal Youth Corrections Act and was fined $10,000.

In this pro se appeal from the district court’s denial of his motion under 28 U. S.C. § 2255, he contends, citing United States v. Hayes, 9 Cir., 1973, 474 F.2d 965, that the imposition of the fine in addition to sentencing under the Federal Youth Corrections Act was error. Our preliminary concern, however, is with the fact that this appeal was not timely filed. Rule 4(a) of the Federal Rules of Appellate Procedure provides that notice of appeal in a case such as this be filed within 60 days of the entry of judgment. The district court’s denial of relief here was entered on September 26, 1973, and the notice of appeal was filed on December 7, 1973. Thus, the appeal was 11 days late. In view of these circumstances, as well as the fact that the appeal is pro se, the interests of justice are best served by remanding the case to the district court to allow Cramer 30 days in which to move for a determination whether under Rule 4(a) excusable neglect entitles him to an extension of the time for appeal. In the meantime, jurisdiction is retained in this Court. See Bryant v. Elliott, 5 Cir., 1972, 467 F.2d 1109; Weaver v. Texas, 5 Cir., 1972, 469 F.2d 1314; Evans v. Jones, 4 Cir., 1966, 366 F.2d 772; C. Wright, Federal Courts 467 (1970).

Remanded.

      . Notarization of the notice of appeal was executed on November 26,1973.


text:
    Peter S. DeSIMONE, Plaintiff-Appellant, v. Velma LINFORD et al., etc., Defendants-Appellees.
    No. 73-2696.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.

      Howard Moore, Jr., Elizabeth R. Rind-skopf, John R. Myer, Atlanta, Ga., for plaintiff-appellant.
    Beverly Bates, Asst. U. S. Atty., John W. Stokes, U. S. Atty., Atlanta, Ga., for def endants-appellees.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   PER CURIAM:

Appellant was discharged from his position as a Deputy Director of ACTION Recruitment pursuant to a general reduction in force. Appellant sought administrative review through two levels in the United States Civil Service Commission. In the meantime he requested a preliminary injunction ordering reinstatement pending a final determination of his administrative appeal. The District Court denied the requested equitable relief and this appeal followed.

A first level decision by the Civil Service Commission’s Appeals Examining Office denying appellant all requested relief was rendered prior to oral argument. Subsequent to argument, that decision was affirmed by the Civil Service Commission Board of Appeals and Review bringing appellant’s administrative appeal to a conclusion. Since the sole issue raised on appeal to this Court is a challenge to the District Court’s denial of injunctive relief pending a final decision of the administrative appeal we are compelled to vacate the order and remand the case to the District Court to dismiss it as moot. National Lawyers Guild, University of Texas Chapter v. Board of Regents, 5 Cir., 1974, 490 F.2d 97; United States Serviceman’s Fund v. Killeen Independent School District, 5 Cir., 1974, 489 F.2d 693; United States v. Munsingwear, Inc., 1950, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36; St. Pierre v. United States, 1943, 319 U.S. 41, 63 S. Ct. 910, 87 L.Ed. 1199; Troy State University v. Dickey, 5 Cir., 1968, 402 F.2d 515, 516-517; New Left Educ. Project v. Board of Regents, 5 Cir., 1973, 472 F.2d 218, 221; Lebus, Regional Director v. Seafarers’ Int’l Union, 5 Cir., 1968, 398 F.2d 281, 283; United States v. West Gulf Maritime Ass’n, 5 Cir., 1972, 460 F.2d 1231.

Vacated and remanded.

      . Cf, Hampson v. Murray. 1974, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.26 166; Arnett v. Kennedy, 1974, -U.S. -, 94 S.Ct. 1633, 40 L.Ed.2d 15.


text:
    Henry C. HAGGARD, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-3822
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.
    Rehearing and Rehearing En Banc Denied July 23, 1974.

      Henry C. Haggard, pro se.
    William J. Baxley, Atty. Gen., Otis J. Goodwyn, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

For more than five years, Henry Haggard has unsuccessfully challenged the validity of his Alabama State conviction for robbery in both the courts of Alabama and the courts of the United States. His collateral attack upon his conviction now comes under the consideration of this Court on appeal from the district court’s denial of his second petition for federal habeas corpus relief. Because the records and pleadings of the prior proceedings are in an incomprehensible state, we are unable to make an informed decision on the merits of Haggard’s appeal. We therefore vacate the district court’s judgment, and remand the cause for further proceedings, as well as clarification of the appellant’s contentions and other relevant issues.

Beginning five months after his conviction, the appellant filed three separate pro se petitions in his trial court for writ of error eoram nobis. He was granted an evidentiary hearing on the first, and the other two were summarily denied as successive petitions. His appeal to the Alabama Court of Criminal Appeals was affirmed on June 23, 1970, without opinion.

One month after the appellate court’s affirmance, Haggard began his first trek through the federal court system. His federal habeas corpus petition filed in the court below was dismissed without prejudice for failure to exhaust state remedies, on the basis of a misrepresentation made by the respondent that Haggard’s appeal was still pending in the Court of Criminal Appeals. Upon discovery of the error, this Court granted his application for certificate of probable cause and leave to appeal in forma pauperis, summarily remanding the case for consideration on the merits. Haggard v. Alabama, 5th Cir. 1971, 439 F.2d 260.

Despite the fact that the appellant’s trial court never entered specific findings as to several of his federal habeas grounds, the district court denied relief based upon its finding that all factual issues presented had been determined adversely to him during the state court proceedings, and that the record fully supported that court’s conclusion that he was not entitled to relief. No appeal was taken from this ruling. Two years later, however, the appellant filed a second federal habeas petition presenting new allegations, which he claimed had been raised in yet a fourth coram nobis petition, denied by both his trial court and the Court of Criminal Appeals, and reasserting several contentions set forth in his prior petition.

As to the latter petition, the court below concluded that the new allegations were not of constitutional dimension and that the other alleged defects with re-pect to his conviction had been previously rejected by the court. It is from this ruling that Haggard has appealed.

In each of the collateral petitions the contentions and allegations have been presented in a manner which can only be considered unintelligible and incoherent. In view of the liberal construction which must be accorded pro se habeas petitions, West v. Louisiana, 5th Cir. 1973, 478 F.2d 1026, 1030-1031, we find that Haggard’s pleadings at least indicate that he may be entitled to the relief he seeks, but that he is unable to articulate and prepare his cause.

Therefore, in the interest of justice, we are compelled to remand this cause to the district court so that Haggard may be given the opportunity to thoroughly present his grievances. On remand, we direct the district court to appoint counsel to aid the appellant in the preparation of a comprehensive amended pleading in order that all of his habeas grounds can be finally decided on the basis of sufficient pleadings and records. Fryer v. MacDougall, 5th Cir. 1972, 462 F.2d 1093.

Accordingly, the judgment denying habeas corpus relief is vacated, and the cause remanded.

      . Counsel was appointed to present the appellant for the hearing; however, counsel never attempted to amend the pro se coram nobis petition, which appears to be, at the very least, an inarticulate, disorganized pleading. It should also be noted that some two years after the hearing, the same attorney was appointed to represent the appellant on his appeal to the Court of Criminal Appeals, but failed to file a brief on his client’s behalf.


text:
    Auria McDANIEL, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY and Cher-Ami Seafood Company, Defendants-Appellees.
    No. 74-1458
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 3, 1974.

      Aaron Frank McGee, Robert K. Guil-lory, Eunice, La., for plaintiff-appellant.
    Edmund E. Woodley, Lake Charles, La., for defendants-appellees.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM:

This appeal is from summary judgment for defendants based on lack of federal jurisdiction. At the time of his injuries, appellant was the owner/operator of a shrimping vessel. He sought to invoke federal admiralty jurisdiction by alleging that his injuries resulted from breach of a maritime contract involving the disposition of his shrimp catches. The court below relied on depositions and affidavits of defendant Cher-Ami’s officers to determine that no contract existed, and that if one did it was not maritime in nature.

Appellant has moved that this court supplement the record with his own deposition which, for some unexplained reason, was not filed with the court below by either the defendants, at whose instance the deposition was taken, or by the certifying officer, whose responsibility it was to file it. See Rule 30(f)(1), F.R.Civ.P. Assuming it had been filed appellant relied on this deposition in resisting the motion for summary judgment, and cited it in his brief to the court below.

The motion to supplement the record is hereby granted. Nonetheless, we affirm the judgment. Appellant’s deposition does not raise a genuine issue of material fact, for it asserts nothing more than a typical non-binding commercial relationship whereby two parties deal with each other for so long as both of them are satisfied with each other’s price, quality and service.

Affirmed.

      . Appellant alleged that his fall and consequent physical injuries were caused by slippery unloading areas which breached Cher-Ami’s contractual duty to provide him safe facilities for the discharge of his cargo.


text:
    Martin GUERRERO, Jr., Plaintiff-Appellant, v. James BARLOW, Individually and as Criminal District Attorney of Bexar County, Texas, Defendant-Appellee.
    No. 73-3972.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.

      Martin Guerrero, Jr., pro se.
    Norris W. Yates, Jr., Asst. Crim. Dist. Atty., San Antonio, Tex., for defendant-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Guerrero appeals from the district court’s order dismissing with prejudice his suit for damages brought against a prosecuting attorney under the Civil Rights Act, 42 U.S.C. § 1983. Guerrero complained that his civil rights were violated when, in a state criminal prosecution, the prosecutor denied him access to supplementary police reports and caused him to be imprisoned before trial, thus handicapping preparations for his defense. The district court held that Guerrero’s claims were barred by the immunity that prosecuting attorneys enjoy under the Civil Rights Act for actions taken within the scope of their authority. We agree. It is well settled that prosecuting attorneys, as “quasi-judicial officers”, are immune from suit under section 1983 for actions taken in performance of their official role. Pierson v. Ray, 1967, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288; Hill v. City of El Paso, 5 Cir. 1971, 437 F.2d 352, 354. We are not persuaded that the actions complained of here are without this band of immunity that surrounds official acts. Nor do we believe that the court erred by dismissing the cause with prejudice.

Affirmed.

      . Guerrero was convicted of murder with malice in Bexar County, Texas, on June 2, 1965, and was sentenced to life imprisonment.


text:
    Caroline WILLIAMS, Plaintiff-Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellant.
    No. 73-3653.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1974.

      John W. Stokes, U. S. Atty., Julian M. Longley, Charney K. Berger, Asst. U. S. Attys., Atlanta, Ga., Harlington Wood, Jr., Harland F. Leathers, Kenneth A. Rutherford, Kathryn H. Baldwin, James E. Hair, Attys., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Jay E. Loeb, David A. Webster, Michael H. Terry, Atlanta, Ga., for plaintiff-appellee.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

This appeal is from an order of the district court requiring that appellant provide pre-termination oral evidentiary hearings to disability recipients under § 223 of the Social Security Act, 42 U.S. C.A. § 423 (1970). Williams v. Wein-berger, N.D.Ga., 1973, 360 F.Supp. 1349. The order was based on the decision in Eldridge v. Weinberger, W.D., Va., 1973, 361 F.Supp. 520, aff’d 493 F.2d 1230 (4 Cir., 1974) [No. 73-1864, slip op. dated April 1, 1974]. The hearing required there and here was in the nature of that required for old age assistance and welfare beneficiaries under Title I and Title IV, respectively, of the Social Security Act. See Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 287; Wheeler v. Montgomery, 1970, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307. See the modification contained in Richardson v. Perales, 1971, 402 U.S. 389, 91 S. Ct. 1420, 28 L.Ed.2d 842, as to the admissibility of written medical reports. 402 U.S. at 407.

Like the district court here and the Fourth Circuit, we conclude that the question presented was correctly decided in Eldridge v. Weinberger, supra.

Affirmed.


author: ENGEL, Circuit Judge.

text:
    INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellant, v. NORTHWESTERN NATIONAL INSURANCE CO., Defendant-Appellee.
    No. 73-1897.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 14, 1974.
    Decided April 11, 1974.

      G. Cameron Buchanan, Alexander, Buchanan & Seavitt, Detroit, Mich., on brief, for plaintiff-appellant.
    Harold F. Klute, Klute, Stone & Campbell, Niles, Mich., on brief, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and LIVELY and ENGEL, Circuit Judges.
   ENGEL, Circuit Judge.

This is an action between two liability insurance carriers, Insurance Company of North America and Northwestern National Insurance Company, to determine which of them is obligated to extend liability coverage for damages to a crane.

In the construction of a multi-story parking facility in Ann Arbor, Michigan, Precast Sehokbeton, Inc., now known as Cork Street, subcontracted with the principal contractor, Jeffress-Dyer, Inc., to furnish and install complete precast concrete work as specified in a written contract. To perform its work, Cork Street required the use of a crane which, with operator, was furnished by L. W. Connelly and Sons, Inc. at an agreed hourly charge.

On May 19, 1966, after work hours, the crane was severely damaged when it was struck by concrete pillars which had previously been erected by Cork Street. The loss sustained, originally stipulated at $100,000 triggered a lawsuit in the Wayne County, Michigan Circuit Court against Cork Street and others by Con-nelly’s property damage insurance carrier.

The instant action was brought in the United States District Court for the Eastern District of Michigan to determine, as between two liability insurance carriers, which was bound to defend Cork Street in the state action and to pay any judgment awarded against it based on the damage to the crane.

Both Insurance Company of North America and Northwestern National Insurance had, through the same agency, issued liability insurance policies to Cork Street. The loss occurred during the coverage period of each policy. The dispute between the two liability insurers, turned upon whether at the time of the damage, the crane had been “rented” by Connelly to Cork Street as the term was used in the respective policies.

In a carefully written opinion, reported at 371 F.Supp. 550, the District Court held upon the facts presented, that under applicable Michigan law the crane was not “rented” at the time of the loss and accordingly rendered judgment against INA and in favor of Northwestern for the agreed amount of loss which had been suffered by the latter.

We conclude that the judgment in favor of defendant-appellee should be affirmed for the reasons stated in the trial court’s opinion, swpra, unless it erred in considering evidence outside the scope of the written stipulation of facts entered into between the parties. This constitutes, in our judgment, the only issue meriting treatment beyond that already afforded by the court below.

To protect themselves and Cork Street in the state action, INA and Northwestern joined to provide Cork Street’s defense. Later, while this action was pending, the state action was compromised and settled, the two insurance companies splitting the $60,000 agreed settlement figure and costs of defense, with ultimate responsibility for the ■ whole to await the District Court’s decision on the coverage issue.

On June 28, 1971, INA and Northwestern filed in the court below a stipulation of facts incorporating therein, applicable portions of their respective insurance policies and a copy of the contract between Jeffress-Dyer and Cork Street and also a copy of a memo or form described thereon as “rental contract” which was used each day between Cork Street and Connelly to disclose the hours the Connelly crane was in operation.

The stipulation provided in part:

“It is hereby stipulated by and between the parties by their respective counsel that this Honorable Court may accept the Statement of Facts, binding on each of the parties and on the basis of the same a decision may be made and a Judgment entered thereon —determining which insurer was the insurer covering the damaged property at the time of the loss and liable for damages, . . . . ”

. Relying upon the stipulation as filed, INA thereupon moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, claiming “that there existed no genuine issues of material fact, but rather, only legal questions remain for determination by this court.”

INA’s motion was met by Northwestern’s claim that, the stipulation notwithstanding, there were in addition to the facts agreed upon, at least four further factual issues in dispute requiring resolution before a decision on the merits could be reached. Northwestern’s response to the motion was accompanied by the affidavit of one of its attorneys, the purport of which was to claim that defendant in executing the stipulation never intended it to limit the right of either party to submit proofs and arguments relative to ultimate issues not alluded to in the stipulation.

In arguments before the District Court, INA vigorously contended that the stipulation was by its own terms all-inclusive. Further, it claimed that its agreement to participate in the compromises of the state action was premised upon the fact that the District Court’s decision on the coverage issue would be limited to consideration of the policies involved and the facts contained in the stipulation, thus allowing the entire dispute to be resolved without the expense of further litigation.

While INA made a strong case before the District Court, as it acknowledged, the existence of an understanding that the stipulation was all-inclusive was not so clear as INA urged.

In addition to the sworn affidavits of Northwestern’s counsel, counsel for INA acknowledged that, at the time the stipulation was being prepared and before it was signed, co-counsel for Northwestern had indicated that there were still additional questions to be resolved. In a letter dated May 26, 1971, addressed to INA counsel, he stated in part:

“While you and Mr. Weintraub have agreed on a stipulated statement of facts, a decision on the issue of ‘care, custody and control’ must of necessity turn largely on the court’s interpretation of the use arrangement between Connelly and Precast Schokbeton. Accordingly, I am wondering to what extent we should agree to limit ourselves as to the facts to be adduced and the argument thereof. Perhaps, we could better resolve these questions by telephone conference or meeting between the two of us. I will await your call in this regard.”

Faced with the foregoing and other equally ambiguous and contradictory representations of counsel, the trial court denied INA’s summary judgment motion without prejudice, observing:

“I don’t know what happened, I can’t tell. And the only grounds that I think that I should consider here, in fairness to the parties involved, I think that in order for this Court to make a fair determination, it should have all available facts.
“I recognize, at the same time, that there may have been some reliance to the detriment of I.N.A. here, and perhaps that can be made an issue one way or another by the way of damages or some other consideration.
“But I don’t think that fairness would permit me to decide this matter on the basis of the stipulation alone when it is obvious that other facts could and should be presented to the Court.”

Subsequently, additional proofs were taken in the form of two depositions, INA participating therein but not abandoning its claim that the stipulation forbade their use.

In that posture, the case was deemed submitted to the court for final decision on the merits. In its opinion, the District Court found that “the stipulation by itself presents insufficient facts for the court to decide this controversy”, and proceeded to consider both the stipulation and the additional proofs. On that basis, the court decided the case adversely to INA.

To the extent that the trial court determined upon the facts before it that Northwestern had not waived its right to submit additional proofs, we hold that finding to be not clearly erroneous. Rule 52(a) Federal Rules of Civil Procedure.

To the extent that the trial court exercised its discretion in order to obtain the additional proof it considered essential to a just adjudication of the controversy, we hold that its discretion was not abused.

It is difficult indeed to conceive that in entering into the stipulation, Northwestern was agreeing to stipulate away the only issue in dispute, that of whether the transaction between Connelly and Cork Street amounted to a rental of the crane. The situation here is not unlike that in Old Colony Trust Associates v. Hassett, 150, F.2d 179 (1st Cir. 1945), in which it was held that a stipulation by the government that a certain transaction was a loan in form did not preclude its argument, albeit unsuccessfully, that it was in substance a sale.

We are in accord with the numerous cited authorities in Michigan and elsewhere concerning the binding effect of stipulations entered into by parties to litigation, and the limitations upon the parties and the court in enlarging the facts beyond those stipulated. 50 Am.Jur., Stipulations, § 9. Feniger v. American Railway Express Co., 226 Mich. 106, 197 N.W. 550 (1924) ; In re Moore’s Estate, 310 Mich. 206, 16 N.W.2d 720 (1974); United States v. Sinor, 238 F.2d 271 (5th Cir. 1956). See also Hackfield & Co. v. United States, 197 U.S. 442, 447, 25 S.Ct. 456, 49 L.Ed. 826 (1905). It is one matter, however, to bind oneself to an admission of the truth of certain undisputed facts and quite another to agree that the facts so agreed to well constitute all of the evidence in the case. Such an understanding, limiting as it does the very basic right to a fair and full trial on the merits, should be enforced only when the intent to do so appears in the clearest form. This is particularly true where, as here, the trial judge on his own, determined the stipulated facts too meager for a proper resolution of the issues presented.

Economy of the time of both litigants and courts is greatly favored, and no more useful device is found than the stipulation which agrees to the existence of material and relevant facts concerning which there is no dispute, thus avoiding time-consuming and unnecessary presentation of proof. See Rules 1 and 16, Federal Rules of Civil Procedure. As such, the stipulation is to be encouraged as an efficient means of presenting evidence, but not necessarily as a vehicle for suppressing it.

We note here, as did the trial judge, that the facts in the stipulation were largely bare-bones and that the additional proof did not contradict the agreed facts but added flesh and life to them, and in so doing presented an understandable controversy to which the judge could apply the law and his appropriate judicial fact-finding function in a bench trial.

This principle was recognized by the Ninth Circuit in Southern California Freight Lines v. Davis et al., 167 F.2d 708, 710 (9th Cir. 1948), where the court stated:

“Appellant contends the trial court was confined to the four corners of the stipulation as to the evidence it could receive and consider. We do not agree. The stipulation relieved the parties from proving the facts therein set forth. The admission into evidence of additional material and relevant facts was proper for a full understanding of the issues and the clarification of the terms used in the stipulation.”

Michigan has taken a similar view. In Thomas Canning Co. v. Johnson, 212 Mich. 243, 180 N.W. 391 (1920), the Michigan Supreme Court stated:

“. . . when it appeared on the argument that plaintiff had omitted to include therein [in the stipulation] a fact upon which its right of recovery depended, and which in no way tended to modify or change any fact so agreed upon between the parties, we believe it was well within the discretion of the trial judge to permit proof of such fact to be received. We can see no distinction in principle between the granting of such a request in this case and in one where, after the proofs are closed, the case is reopened to permit an omitted fact to be established. That the trial court has such discretion has been many times held by this court.” 212 Mich, at 249, 180 N.W. at 393.

Appellant does not claim that it was in any way precluded from presenting any further proof of its own, or that it even had any. While preserving its objection to the taking of additional proof, the appellant was permitted to participate fully in the process. Appellant does not claim the parties were denied a fair trial. On the contrary, it claims that, because of the stipulation, the trial judge was obligated to afford the' parties something less. We cannot agree.

Affirmed.

      . The INA policy extended property damage coverage to Cork Street, but excluded “injury to or destruction of (1) property owned or occupied by or .rented to the insured . . . ” The Northwestern policy, on the other hand, appears to have been written with a view toward covering the risk exelud-ed in the INA policy for it provided in a “Contractor’s Equipment Floater” that “this policy covers the legal and/or assumed liability of the assured in respect of loss or damage to rented items of contractors’ equipment belonging to others. . . . ”