author: BARRETT, Circuit Judge.

text:
    The PERMIAN CORPORATION, a Delaware corporation, Plaintiff, v. ARMCO STEEL CORPORATION, Defendant-Appellant, and Frank J. Gehrer and Hazel J. Ross, Defendants-Appellees, and Classic Mining Corporation, Defendant.
    No. 74-1164.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 13, 1974.
    Decided Dec. 19, 1974.
    Rehearing Denied Jan. 6, 1975.

      Walker E. Anderson, Salt Lake City, Utah, for Hazel J. Ross, defendants-ap-pellees.
    William T. Schwartz, Casper, Wyo., for Armco Steel Corporation, defendant-appellant.
    Before SETH, BARRETT and DOYLE, Circuit Judges.
   BARRETT, Circuit Judge.

Armco Steel Corporation (Armco) appeals from a diversity based interpleader judgment entered March 7, 1973, by the United States District Court for the District of Wyoming in an action initiated by the Permian Corporation (Permian), purchaser of certain oil and gas production from two leaseholds covering lands situate in Carbon County, Wyoming, insofar as the proceeds thereof are attributable to the working interest owned by Classic Mining Corporation (Classic). Concurrent with the filing of the complaint which specially named thirteen claimants to the Classic proceeds with aggregate claims in excess of $270,-000.00, Permian deposited the sum of $13,218.27 into the registry of the court representing the proceeds attributable to the Classic interest.

Following various pleadings, including pretrial memorandums, the cause came on for hearing on a twelve-page stipulation of facts entered into between the interpleading parties claiming as of December 26, 1973. No testimony was adduced. It was agreed that all of the claims for services and materials furnished Classic for development of the leasehold estates were lienable claims under the laws of Wyoming, properly prepared, timely filed against the property from which the production was realized, and that foreclosure suits had been filed and proceeded upon to judgments. It was also agreed that the services (labor) and materials furnished by the statutory lien claimants preceded in time judgments obtained and garnishments issued in aid of execution by two general creditors of Classic, Defendants-Appel-lees here, first one Frank J. Gehrer (Gehrer) in amount of $1,988.00 and next (in terms of execution priority), one Hazel J. Ross (Ross) in amount of $10,-342.34. It was further agreed that Arm-co, whose judgment amounted to $30,-651.75, was the only service and materi-alman lien claimant to give Permian the requisite notice of its lien claim and, further, that the Armco notice to Permian was given on May 30, 1972, after the Gehrer garnishment on Permian of September 9, 1971, but before the Ross garnishment on Permian of December 4, 1972.

The trial court entered Judgment (with special findings) on January 29, 1974. The Court found, inter alia: That Armco furnished materials to Classic and properly filed two Notices of Lien in the office of the County Clerk of Carbon County, Wyoming; that Armco obtained a judgment thereon in the amount of $30,651.75, in the District Court of Carbon County, Wyoming, on May 25, 1972, and on May 30, 1972, notified Permian of its claim against the proceeds of production attributable to Classic as provided pursuant to § 29-31, W.S.1957, C.1967; that Armco is the only lien claimant (re the furnishing of services and materials to the leasehold estates) that gave Permian the above notice, but that Armco did not issue any writ of garnishment in aid of execution of its judgment; that Gehrer, a general creditor, obtained judgment against Classic on February 18, 1971, in amount of $1,988.00, and garnisheed Permian in aid of execution on September 9, 1971; that Ross, a general creditor of Classic, obtained judgment against Classic in amount of $23,114.84 on -December 4, 1972, and garnisheed Permian in aid of execution on the same date; that the sole issue before the court involved the priority among the claimants to the deposited funds; that the state law of Wyoming, and not federal law, controls the nature and extent of the liens in light of the fact that all of the claims were reduced to judgments in Wyoming; that although Armco was the only lien creditor to comply with the notice provisions to Permian as required by § 29 — 37, W.S.1957, C.1967, even so, priority in time of service of the writ of attachment in aid of execution of judgment determines the superiority of conflicting attachments or garnishments and grants superiority over any lien claimant who relies on the service of notice following entry of judgment; that the lien, until reduced to judgment, is inchoate, and that priority of any lien depends on the time it attaches to the property in question and became choate. (Emphasis supplied). The Court relied upon Adamsville Lumber Company, Inc. v. Rainey, 348 F.Supp. 373 (W.D.Tenn.1972) and cases cited therein for the general rule that:

Once liens or claims are reduced to judgment they become choate, and any prior lien is merged in the judgment lien. The judgment lien is perfected by issuance of a writ of execution on the judgment. Under Wyoming law, the priority between writs of execution is determined by which party is first in time. Wyo.Stat. § 1 — 370 (1957), provides: . [W]rit of execution first delivered to the officer shall be first satisfied.”; that in the instant case only three parties pursued their claims to the point of obtaining execution and that among the three, Gehrer, LeRoy’s and Ross, LeRoy’s claim never attached for failure to give notice pursuant to § 29-31.

The Court’s judgment, after allowance of attorney’s fees and costs, was $1,988.00 in full satisfaction of Gehrer, who was declared to have a prior and paramount right to the balance of the deposited funds, and to Ross, who was determined to be next in right, with a superior right to the balance or $10,-342.34 as partial satisfaction of her judgment lien.

Armco, on appeal, declares that the only question for our determination involves the priority between Armco’s statutory mechanic’s and materialman’s lien pursued to judgment with notice to the crude oil purchaser and the general judgment creditors, Gehrer and Ross, who issued out a garnishment in aid of execution to the funds in the hands of the crude oil purchaser. (Emphasis supplied).

Armco contends that the Trial Court erred in that: (1) as a matter of law Armco’s lien was superior and prior to that of general executing judgment creditors Gehrer and Ross because the very purpose of the Wyoming statutory scheme is to protect the right of mechanics and materialmen against the specific lands from which production of oil and gas is obtained and proceeds of sale thereof realized and that the “ . lien shall continue until such suit is finally determined and satisfied as provided under § 29-37, W.S.1957, C.1967.”; (2) there is no legal precedent under Wyoming law for the holding that upon foreclosure of a mechanic’s and material-man’s lien the judgment lien is merged into and takes the place of the former “inchoate” lien and that the judgment foreclosing the lien is treated like any other judgment so that priority is predicated on the order of execution; (3) it held, as a matter of law, that the Armco lien was inchoate (being only partly in existence or operation until reduced to judgment and that, even then, the priority of any judgment lien depends on the time it attaches to the property in question and then becomes choate — operative); (4) it failed, as a matter of law, to rule that a mechanic’s lien is distinct from an ordinary lien and that, as a consequence, Armco, by virtue of its mechanic’s and materialman’s lien had priority to the Classic proceeds of production held in the hands of Permian over general judgment creditors, Gehrer and Ross; and (5) in failing to rule, as a matter of law, that the Armco lien against the proceeds held by Permian dates back to the time materials were first furnished Classic under the lien claims, i. e., January 30, 1970, which date far precedes the Gehrer and Ross garnishments in aid of execution.

This is a case of first impression on the facts involved. Accordingly, Wyoming statutes and decisions are useful only as analogous tools. The author believes that it is unfortunate that the parties did not elect to present the unsettled question of important state law presented here for controlling resolution by the courts of the State of Wyoming. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Trigg v. Moseley, 433 F.2d 364 (10th Cir. 1970).

We are not unmindful that a determination of state law by a federal district judge who is a resident of the state where the controversy arose, carries extraordinary persuasive force on appeal. Stafos v. Jarvis, 477 F.2d 369 (10th Cir. 1973), cert. denied 414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d 168 (1973). With full recognition that Courts of Appeal cannot overturn holdings of the trial court unless they are determined to be clearly erroneous, we are compelled to hold that such action is mandated here. Rule 52, Fed.R.Civ.P., 28 U.S.C.A.; Williams v. Eaton, 468 F.2d 1079 (10th Cir. 1972).

I.

Both appellant and appellees contend that Wyoming statutes and certain decisions interpretive of those statutes support their opposing contentions.

Appellant Armco relies upon Sections 29-7, 29-29, 29-31, 29-37, W.S.1957, C.1967, which relate to liens for work and labor done (services) and for material furnished, as support of its contention that its lien rights are prior to and superior to those of Gehrer and Ross. The lien statement first filed in the office of the County Clerk of Carbon County, Wyoming, recites that the first work performed by Armco occurred on January 30, 1970, and the last on June 14, 1971. Armco’s lien statement was recorded on July 12, 1971, all prior to the execution of the Gehrer judgment on September 9, 1971, and the Ross judgment on December 4, 1972.

The statutes relied upon by Armco are:

Section 29-7, W.S.1957, C.1967:

The lien for work and labor done and performed and for material furnished as aforesaid, shall be preferred to all other incumbrances which may be attached to or upon such building or other improvements or the ground, lot or land upon which they are situated or located, or either of them, subsequent to the commencement óf such buildings or improvements. (Emphasis supplied).

Section 29-29, W.S.1957, C.1967, in relevant part:

Every person, corporation who does work or labor upon, or furnishes or rents materials or services for constructing . . . operating, completing or repairing of any gas wells, oil wells ... or for altering, repairing or constructing any oil derrick, oil tank or oil or gas pipelines by virtue of a contract, express or implied, with the owner, part-owner or lessee of any interest in real estate . . . shall have a lien to secure the payment thereof, upon said gas well, oil well, or other well and upon said oil derricks, oil tanks, oil or gas pipeline and upon all material furnished to be used in connection with said improvement, and upon the whole of the land or leasehold including all other wells, buildings and appurtenances located upon said land or leasehold upon which said improvement may be located;

Section 29-31, W.S.1957, C.1967, extends the lien to the proceeds of the sale of oil and gas. It provides, inter alia:

The lien provided for in this act [§§ 29-27 to 29-32, 29-34, 29-39] shall additionally extend to and cover all oil or gas . . . produced attributable to the interest which is subject to the lien and the proceeds thereof inuring to the working interest therein as such working interest existed on the date labor was first performed or materials or services were first furnished. (Emphasis supplied).

The aforesaid section (29 — 31), further provides that the crude purchaser shall withhold payments of the proceeds to the extent of the lien amount claimed until notified in writing that the claim has been paid.

Section 29-37, W.S.1957, C.1967, in part:

Every . . . corporation . holding such lien may proceed to obtain a judgment ... by civil action commenced . . . within six months after said filing of such notice and the lien shall continue until such suit be finally determined and satisfied. (Emphasis supplied).

Appellees Gehrer and Ross rely upon general judgment, execution, garnishment and attachment statutes of Wyoming, Sections 1 — 232, 1 — 243, 1 — 357, 1— 358, 1-370, 1-371, and 1-580, W.S.1957, C.1967, and Wyo.R.C.P., Rule 69 and certain decisions in support of the trial court’s judgment and their contention that Armco’s judgment was dormant, inchoate and unperfected on the dates that Gehrer and Ross garnisheed Permian by execution, thus rendering the Gehrer and Ross claims superior and prior to that of Armco.

Appellees argue that when the labor and/or materialman lien of Armco was reduced to judgment that then the judgment lien was substituted for and took the place of the prior lien, and that the Armco judgment-lien remains dormant, inchoate and unperfected until garnishment in aid of execution is issued by the Court for collection of the amount of the judgment. (Emphasis supplied).

Appellees allege that the process to enforce a judgment in Wyoming shall be by a Writ of Execution, as provided under Wyo.R.C.P., Rule 69, and § 1 — 357, W.S.1957. They argue that the notice submitted by Armco to Permian following entry of the Armco judgment of May 25, 1972, was “merely a unilateral act on behalf of Armco, leaving Arm-co inchoate, whereas, a Garnishment in Aid of Execution on the Judgments, by Gehrer and Ross, are choate procedures by the Court and Sheriff for collecting the Judgments.” (Appellees Brief, p. 5). On this predicate, appellees contend that the Armco Notice did not have the force and effect of the actions of the Court and Sheriff in relation to their claims. They cite us to: § 1 — 370, supra, in part, “in all other cases the writ of execution first delivered to the officer shall be first satisfied.”; § 1 — 371, supra, in part, “The officer to whom a writ of execution is delivered shall proceed, immediately, to levy the same upon the goods and chattels of the debtor; which are liable to satisfy the judgment”; § 1-232, supra, for the proviso that “When there are several orders of attachment against the same defendant, they shall be executed in the order in which they were received by the sheriff”; § 1-580, supra, for the contention that because Permian paid the proceeds into the Court by interpleader following the service of the writs issued by Gehrer and Ross, that the writs fastened to the money and followed it into the Registry “and continued to attach to said money.” (Appellees Brief, p. 6); § 1 — 358, supra, which provides that the money held by Permian, so garnisheed, shall be bound to pay the Gehrer and Ross judgments from the time it was seized in execution; § 1 — 243, supra, which provides, in part, that an order of attachment shall bind the property attached from the time of service.

II.

Appellees rely heavily on the opinion announced in Adamsville Lumber Company v. Rainey, supra, for the proposition that because Armco did not execute on its judgment prior to the executions effected on the Gehrer and Ross judgments that Armco’s judgment has been and is dormant, inchoate and unperfect-ed. The suit in Adamsville arose following a fire loss to a residential structure insured under a homeowners policy. Ad-amsville Lumber Company was the building contractor. The owners of the property had obtained a Farmers Home Administration loan with which to build the home. The Court rejected the contractor’s claim to the insurance proceeds based upon its asserted priority thereto in reliance of its compliance with the Tennessee mechanic’s and materialman’s lien law because under the Federal “first in time, first in right” rule the prior recorded deed of trust in favor of the FHA had priority over the material-man’s lien asserted under Tennessee law. The Court noted that this federal rule “has broad application and pertains not only to federal tax liens but also to federal mortgage liens.” 348- F.Supp. 373 at 377. The Court also observed that the priority claimed by the contractor — as materialman under Tennessee law—

has no merit here since Tennessee law cannot modify a Congressional statute and regulations giving the FHA priority . . Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943) ... In applying the Federal “first in time, first in right” rule, we must decide in favor of FHA’s lien .
348 F.Supp. 373 at 377.

The Adamsville Court recognized that if it were not dealing with Federal statutes, regulations and interpretations governing the priority rights of the FHA, the building contractor would have established a priority to the insurance proceeds under Tennessee law. 348 F.Supp. 373 at 376.

The United States is not a party to the instant suit. Jurisdiction is predicated on diversity. Accordingly, reliance on Adamsville, supra, is misplaced. In Ad-amsville, the Court relied upon certain United States Supreme Court decisions upholding trial court applications of the so-called “federal common law” grounded on the premise that the federal interest was so strong and the regulatory statutes so comprehensive that a federal common law remedy must be “fashioned”. Clearfield Trust Co., supra; Ivy Broadcasting Company v. American Telephone and Telegraph Company, 391 F.2d 486 (2nd Cir. 1968).

There is nothing in the record before us indicating that any agency of the United States has or claims any interest in the interpleaded proceeds. That being so, we must determine the applicable law of Wyoming in this diversity suit. There is no justification for the application of federal common law. Chavez v. Freshpict Foods, Inc., 456 F.2d 890 (10th Cir. 1972), cert. denied 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972); McCord v. Dixie Aviation Corporation, 450 F.2d 1129 (10th Cir. 1971).

We further note that in Adamsville, supra, the Court recognized that the FHA had not complied with the Tennessee statute in regard to submitting notice to the contractor of its mortgage interest and that if the Tennessee law applied, considering the fact that the contractor — mechanic’s and materialman lienor — had no actual notice of the mortgage, the contractor’s lien would have gained priority over the FHA mortgage. The Tennessee statute, T.C.A. § 64 — 1108, read:

Priority over mortgage. — If the contract be made with the mortgagor, and the mortgagee has written notice of the same, before the work is begun or materials furnished, and consent thereto, the lien, shall have priority over the mortgage; and if he fail to object, in writing, within ten (10) days after receipt of the notice, his consent shall be implied.

By analogy, Pheister v. Ogden Smelting & Refining Mills, Inc., 364 P.2d 1078 (Wyo.1961), was concerned with the priority between a mortgage lien on the one hand and a lien for labor and material furnished to the oil and gas leasehold. The Court held that the mechanic’s and materialman’s lien claimant, having given the statutory notice to the crude purchaser, had a prior claim to the proceeds over the mortgagee who had not notified the purchaser. Significantly, in relation to the choate v. inchoate dispute involved in the case at bar, the Court in Pheister said:

the bank, the mortgagee, made no effort of any kind whatever to take possession or control of the oil produced on the leasehold or the proceeds thereof up to the time when appellant’s lien became effective. The lien of the appellant must accordingly be held to be prior and superior to the claim of the bank insofar as the oil and the proceeds thereof are concerned. (Emphasis supplied).
364 P.2d 1078 at 1083.

The Pheister decision was re-affirmed in Cities Service Oil Company v. Pubco Petroleum Corporation, 497 P.2d 1368 (Wyo.1972), where the Court, noting that oil and gas liens, like other liens, are purely statutory and must be strictly construed so that their scope cannot be extended by implication, held that Pub-co, the driller-operator of a well on the leasehold estate, could claim no lien by virtue of § 29 — 29, supra, “except ‘by virtue of a contract, express or implied, with the owner, part-owner or lessee’ of some interest.” 497 P.2d 1368, 1373. The Court, having taken notice that oil and gas liens are a creature of statute and in derogation of the common law, took notice of the statutory language contained in § 29-29, W.S.1957, C.1967, which provides inter alia, that if the labor is performed or materials or services are furnished, the lien then extends to the interest of the “owner, part-owner or lessee” with whom the mechanic and/or materialman contracted in the “whole of the land or leasehold.” 497 P.2d 1368 at 1370.

III.

While it is correct that an attachment writ predicated upon a valid judgment properly served creates a lien under the provisions of § 1 — 243, W.S.1957, (Platte County State Bank v. Frantz, 33 Wyo. 326, 239 P. 531, 1925), except in cases to set aside fraudulent conveyances, this same section exempts such property in the hands of the garnishee as may be by law exempt from execution. It is in this context of the case that we must hold that the appellants’ mechanic’s lien has priority over the Classic proceeds in the hands of Permian.

The lien of Armco became fully “choate” as against the appellees when Notice thereof was served by Armco upon Permian.

It is fundamental that the basic purpose of lien statutes, which are in derogation of the common law, is to create a new means of securing claims of particular classes of creditors and to prevent unjust enrichment arising from enhancement of property from which work and materials expended thereon would otherwise go without payment. United Pacific Insurance Company v. Martin and Luther General Contractors, Incorporated, et al., 455 P.2d 664 (Wyo.1969); Browning v. Allied Helicopter Service, Inc., 309 F.2d 712 (10th Cir. 1962). Thus, Wyoming has recognized the rights of subcontractors, whose liens were properly recorded but unsatisfied, to subject their liens to the oil and gas leasehold estates of the owner they had provided services or materials for at the request of the contractor, notwithstanding the fact that the owner had previously paid the contractor in full. Arnold v. American Pipe & Supply Co., 413 P.2d 874 (Wyo.1966). These and many allied decisions support the rule that the statutorily created mechanic’s lien is akin to an “equitable lien” which has been defined as a right, not existing at law, to have specific property applied in whole or in part to the payment of a particular class of debts which may be created by express contract which shows an intention to charge some particular property with a debt obligation; or it may arise by implication from the relations and dealings of the parties whose interests are involved. Morrison Flying Service v. Deming National Bank, 404 F.2d 856 (10th Cir. 1968), cert. denied 393 U.S. 1020, 89 S.Ct. 628, 21 L.Ed.2d 565 (1969). Thus, in Sargent v. Delgado, 492 P.2d 193 (Wyo.1972), the Court, in referring to Wyoming’s statutory lien for things and materials furnished and work performed on any building, erection or improvement favorably quoted from the Missouri case of Schulenberg v. Hayden, 146 Mo. 583, 48 S.W. 472, that:

. if there is a mortgage on the land, and a contractor, under contract with the owner of the equity of redemption, builds a new house upon the land, he has a mechanic’s lien against the house, and the house may be sold, and may be removed from the land by the purchaser; for this preserves to the mortgagee all the security he formerly had, and secures, as far as possible, the payment to the contractor for the work and materials he used in building the house. . . . (Emphasis supplied).
492 P.2d 193 at 196.

By analogy, we suggest that the above rationale applies here between the general judgment creditors-appellees and the lienor-appellant. And in Sawyer v. Sawyer, 79 Wyo. 489, 335 P.2d 794 (1959), the Court stated, in reference to mechanic’s liens:

We also accept appellant’s contention that an encumbrance created during progress of construction is obtained with notice that the builder will be entitled to a superior lien providing only that timely and proper action is taken to establish the same. (Emphasis supplied).
335 P.2d 794 at 797.

Of course, appellees’ judgment liens are statutorily created. There is no dispute that all parties complied with the respective Wyoming statutes here involved. Even so, appellees argue that the mechanic’s lien of appellant is dormant, inchoate and unperfected because Garnishment in Aid of Execution of its judgment was not issued and served upon Permian. Because appellees have accomplished just that, they insist that their priority is established.

We are not here concerned with any claim to the proceeds by any agency of the United States, and accordingly we need not relate to the federal “first in time, first in right” rule applied in such cases. Nor are we here involved in a contest between rival garnishment claimants to proceeds interpleaded by the garnishee, which, absent some Wyoming statute attaching a particular lien claim to said property, would involve only the recognition that priority in time of service of the writs of attachment determines the superiority of conflicting attachments or garnishments of the same indebtedness. L. C. Jones Trucking Co. v. Superior Oil Co., 68 Wyo. 384, 234 P.2d 802 (1951); § 1-232, W.S.1957; Great Falls Transfer and Storage Company v. Pan American Petroleum Corporation, 353 F.2d 348 (10th Cir. 1965).

The lien of Armco was a “choate” lien following service of the Notice upon Permian where, just as in United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520 (1954), even though the City’s liens for unpaid taxes and water rent had not been reduced to judgments they were held to be superior and prior to two foreclosed mortgages in that said liens were specific and:

perfected in the sense that there is nothing more to be done to have a choate lien — when the identity of the lienor, the property subject to the lien, and the amount of the lien are established.
347 U.S. 81 at 84, 74 S.Ct. 367 at 369.

See also Director of Revenue, State of Colorado v. United States, 392 F.2d 307 (10th Cir. 1968). Also see Pheister v. Ogden Smelting & Refining Mills, Inc., supra, where the court, in dictum, said:

The date of priority (of the mechanic’s lien) . . . must be held to relate back only to the time when the work and labor of the appellant was completed . . . . (Emphasis supplied).
364 P.2d 1078 at 1083.

Of like significance is the holding in Director of Revenue, State of Colorado v. United States, supra, that the SBA mortgage met all of the elements required to create a choate lien and that, accordingly, it became choate at the time the SBA mortgage documents were executed. (Emphasis supplied). 392 F.2d 307 at 313.

The positive legislative enactment prescribing the conditions essential to the existence and preservation of a statutory lien may not be disregarded, and in order to create such a lien there should be substantial compliance with the requirements as to the filings of liens and notices of liens. 53 Am.Jur.2d, Mechanics’ Liens, §§ 17 — 25; 51 Am. Jur.2d, Liens, § 39, p. 178. Upon compliance, it constitutes a statutory security interest in the nature of a mortgage for enforcing a claim which has supposedly added value to the specific property by reason of services and materials supplied, thereby effecting a preference or priority. 53 Am.Jur.2d, Mechanics’ Liens, § 178, p. 697 and cases cited therein; 38 Am.Jur.2d, Gas and Oil, §§ 136 — 140; An-not. 59 A.L.R. 3rd, Oil and Gas — Mechanic’s, Materialman’s Lien, pp. 278 — 302. These decisions are distinguishable from those which have held that the lien does not attach to the proceeds of the production where the applicable mechanic’s or materialman’s lien statute does not so expressly provide. Chambers v. Nation, 178 Colo. 124, 497 P.2d 5 (1972); Archer v. Wedderien, 446 P.2d 43 (Okla.1968); Black v. Giarth, 88 Kan. 338, 128 P. 183 (1912).

“The effect of the failure of a lien claimant to serve the required notice on the owner, or to serve a proper notice, depends upon the terms of the statute creating the requirement Under the statutes in some states, a claimant required to give notice has no ... enforceable lien ..” 53 Am.Jur.2d, Mechanics’ Liens, § 178, p. 697 and cases cited therein; See also Arch Sellery, Inc. v. Simpson, 346 P.2d 1068 (Wyo.1959), for the rule that failure to file the mechanic’s lien within the time permitted precludes its existence and renders the lien void and unenforceable.

The service of Notice on the owner or his agent, pursuant to the statute (of intention to claim a lien by a specific lienor, against specific property for a specific sum), operates, in effect, as a garnishment or equitable assignment of the amounts due or thereafter becoming due the contractor on the contract, and entitles the person claiming and serving the lien Notice to receive so much of the proceeds as will satisfy the claim. 53 Am.Jur.2d, Mechanics’ Liens, § 177 p. 696.

An execution lien attaches to whatever title or interest the debtor has, subject to all prior equities, including existing encumbrances such as liens, mortgages and pledges. 33 C.J.S. Executions § 125, p. 291. Thus, although by judgment a new cause of action is created, we must hold that the advantages to which appellant Armco was entitled with respect to its compliance with the requirements of the Wyoming mechanic’s and materialman’s statutes were not destroyed by its judgment. Armco, as a particular statutory lien creditor against Classic, obtained a choate lien upon the proceeds of Classic’s share of the proceeds of production in the hands of Permian upon service of the statutory Notice, and the previous entry of judgment in favor of Armco on the lien claim did not deprive Armco of the priority benefit of the lien. The lien of Armco was choate following service of the Notice on Permian. Arnold v. American Pipe & Supply Co., supra; Pheister v. Ogden Smelting & Refining Mills, Inc., supra; Director of Revenue, State of Colorado v. United States, supra; Morrison Flying Service v. Deming National Bank, supra; Savage v. McNeany, 372 F.2d 199 (10th Cir. 1967); United States v. L. R. Foy Construction Company, Inc., 300 F.2d 207 (10th Cir. 1962).

Reversed and remanded.


source: Caselaw Access Project

author: BREWSTER, District Judge:

license: Public Domain

text:
    Thomas LLERENA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1257.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1975.
    P. D. Aiken, Miami Beach, Fla., for petitioner-appellant.
    Robert W. Rust, U. S. Atty., Barbara Vicevich, Kerry J. Nahoom, Asst. U. S. Attys., Miami, Fla., for respondent-appel-lee.
    Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.
   BREWSTER, District Judge:

This appeal challenges the validity of an action taken by the trial court to correct an illegal sentence of appellant for violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

On August 26, 1971, Thomas Llerena, the appellant here, and Amado Lopez were each found guilty by a jury on a count charging them with conspiring with each other to possess cocaine with intent to distribute it, in violation of Title 21, U.S.C., Sec. 841(a)(1). On the following October 5th, Llerena was sentenced to serve eighteen months. Lopez received a longer prison sentence on his convictions on the three counts. The convictions of both Llerena and Lopez were affirmed. United States v. Lopez, et al., 5 Cir., 459 F.2d 949 (1972). After Llerena’s petition for certiorari was denied (409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131), he surrendered to the proper United States Marshal on September 26, 1972, to begin service of his eighteen months sentence.

On May 11, 1973, the Bureau of Prisons directed the sentencing court’s attention to the fact that Llerena’s sentence failed to include the special parole term made mandatory by statute under the circumstances. On June 4, 1973, that court entered a corrected judgment and commitment assessing Llerena’s punishment at eighteen months confinement, with a special parole term of three years in addition thereto, to be effective as of the date of the original judgment. That judgment complied with the penalty statute, but was invalid because the corrected sentence augmenting the earlier one was pronounced without having Llerena present. Caille v. United States, 5 Cir., 487 F.2d 614 (1973).

Llerena got out of prison on mandatory release under 18 U.S.C. § 4163, on October 26, 1973. Shortly thereafter, he filed a motion to vacate the corrected judgment of the previous June 4th on the grounds that he was not present when the sentence therein provided was imposed, and that the court lacked authority to increase his sentence after he had begun service of it. The motion was denied on November 27, 1973. On December 7, 1973, Llerena filed a motion for reconsideration of the order of November 27th on the ground that the opinion in Caille v. United States, supra, handed down on November 26, 1973, supported his contention that the special parole term could not be added without his being afforded an opportunity to be present. At a hearing on the motion held on December 17, 1973, with Llerena and his counsel and an Assistant United States Attorney present, the Court set aside the corrected judgment of June 4th and sentenced Llerena to eighteen months imprisonment with a special parole term of three years added thereto. Judgment dated December 17, 1973, but effective nunc pro tunc as of October 5, 1971, the date of the original judgment, was entered accordingly.

The last judgment cured the defects which had been fatal to the two previous ones; but Llerena here claims that it should be set aside because it was pronounced after he had discharged the eighteen months prison sentence, and therefore violated the double jeopardy provisions of the Fifth Amendment to the Constitution of the United States. In support of his contention, he cites the following cases: Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1973); United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309 (1928); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Rowley v. Welch, 72 App.D.C. 351, 114 F.2d 499 (1940); Acme Poultry Corp. v. United States, 4 Cir., 146 F.2d 738 (1944), cert. den. 324 U.S. 860, 65 S.Ct. 865, 89 L.Ed. 1417; Oxman v. United States, 8 Cir., 148 F.2d 750 (1945); United States v. Rosenstreich, 2 Cir., 204 F.2d 321 (1953); United States v. Chiarella, 2 Cir., 214 F.2d 838 (1954), cert. den. 348 U.S. 902, 75 S.Ct. 226, 99 L.Ed. 708; Deutschmann v. United States, 9 Cir., 254 F.2d 487 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1377, 2 L.Ed.2d 1374; Aga v. United States, 8 Cir., 312 F.2d 637 (1963); United States v. Sacco, 2 Cir., 367 F.2d 368 (1966); Schultz v. United States, 5 Cir., 384 F.2d 374 (1967); Sullens v. United States, 5 Cir., 409 F.2d 545 (1969). A good statement of the general rule established by these cases is found in the Rosenstreich opinion where the Court said:

“It is well settled that, thanks to the double-jeopardy provision of the Fifth Amendment, a federal court may not increase (a) a sentence of imprisonment, once execution of the sentence has begun, or (b) a sentence to pay a fine, after the fine first imposed has been paid . . . ” 204 F.2d, at 321.

This rule applies to cases where the first sentence is a legal one. The following quotations show that the law is different where the first sentence is illegal.

“ . . . The Constitution does not require that sentencing should be a game in which a wrong move by a judge means immunity for the prisoner. See King v. United States, 69 App.D.C. 10, 98 F.2d 291, 296. In this case the court ‘only set aside what it had no authority to do, and substitute[d] directions required by law to be done upon conviction of the offender.’ In re Bonner, supra, 151 U.S. [242] at page 260, 14 S.Ct. [323] at page 327, 38 L.Ed. 149. It did not twice put the petitioner in jeopardy for the same offense. The sentence, as corrected imposes a valid punishment for an offense instead of an invalid punishment for that offense.” Bozza v. United States, 330 U.S. 160, 167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947).
“Concededly, in the present case, as in Bozza, the prisoner had begun to serve an illegal punishment. In Bozza, however, the court had no choice under the statute but to increase the sentence, because the original penalty had been too light. The conflict between Lange, which forbids a heavier punishment, and the statute, which required it, could not be resolved. If an exception was not made to Lange, no legal sentence could be imposed . . ..” Sullens v. United States, supra, 409 F.2d at page 548.

The following is quoted from the footnote to the sentence above quoted from the Rosenstreich case:

“Nor are eases in point which hold valid a sentence heavier than the original sentence where the latter was ruled to be invalid on defendant’s suit, Murphy v. Massachusetts, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711, or where the original sentence was invalid because of the failure to impose the required minimum penalties, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818. Of course, reduction of a sentence partly executed is not invalid, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354.” 204 F.2d at 322.

Where the punishment imposed by the court in a criminal case does not conform to the applicable penalty statute, it is illegal. Bozza v. United States, supra; Reyes v. United States, 5 Cir., 262 F.2d 801 (1959); Caille v. United States, supra; Tanner v. United States, 5 Cir., 493 F.2d 1350 (1974); Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516 (1957); Deutsehmann v. United States, 9 Cir., 254 F.2d 487 (1958); Mathes v. United States, 9 Cir., 254 F.2d 938 (1958); Orrie v. United States, 8 Cir., 302 F.2d 695 (1962); United States v. Thomas, E.D.N.Y., 356 F.Supp. 173, affirmed, 2 Cir., 474 F.2d 1336 (1973); Garcia v. United States, 10 Cir., 492 F.2d 395 (1974); Thompson v. United States, 1 Cir., 495 F.2d 1304 (1974). Caille, Tanner, Thomas, Garcia and Thompson were cases where the mandatory special parole term under the Comprehensive Drug Abuse Prevention and Control Act of 1970 was inadvertently omitted from the original sentence and was later added by corrective judgment.

When the sentencing court discovers that a sentence imposed by it did not conform to the applicable penalty statute, it has the duty to correct the sentence so as to comply with the statute even though service of the sentence first imposed has begun, and though the corrected sentence is required to be more onerous. Reyes v. United States, Caille v. United States, Mathes v. United States, United States v. Thomas, and Thompson v. United States, all supra. These cases hold that such correction may be made at any time under Rule 35, F.R.Crim.P.

Llerena contends that all of the confinement and parole obligations of his sentence were completely discharged when he left prison under mandatory release on October 26, 1973; and that at the time the Court pronounced the corrected sentence on December 17, 1973, he had passed the period when the rule authorizing the correction of an illegal sentence at any time would be applicable. That contention is based upon his construction of the effect of the application of the provisions of the mandatory release statutes quoted in footnote 5 to the portion of his prison sentence not served. Since he was actually in custody thirteen months, only five months remained on his eighteen months sentence when he was mandatorily released. 18 U.S.C. § 4164 provides that a petitioner so released shall “be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” Llerena was therefore not subject to parole under the statutes generally applicable to most types of offenses, because he had only one hundred and fifty days left on his sentence when he was released. He argues that even though he was still arithmetically within the eighteen month period of his sentence, the fact that he was not under parole supervision made it impossible to require him to return to custody to discharge any of the unserved portion of his sentence, regardless of his conduct. He says that by reason thereof the Court had no strings on him when it pronounced the corrected sentence on December 17, 1973, and that the Court’s corrected sentence of that date therefore violated the double jeopardy provisions of the Fifth Amendment.

Rule 35, F.R.Crim.P., providing that a court “may correct an illegal sentence at any time”, and the authorities cited above applying such rule to corrections of illegal sentences of the type here involved, are a complete answer to Llere-na’s contention that the trial court lacked authority to correct his sentence on December 17, 1973. However, since the Court does not agree with Llerena’s contentions that all his confinement and parole obligations had been fully discharged when he left prison under mandatory release on October 26, 1973, that matter will be discussed briefly.

Llerena’s contention that at the time he left prison in October he had passed the period when he was subject to parole ignores the special parole term of at least three years made mandatory under the penalty provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 quoted in footnote 2. 21 U.S.C. § 841(b)(1)(A) says that such special parole term shall be “in addition to such term of imprisonment.” 21 U.S.C. § 841(c) provides that it is in addition to any other parole provided by law. The parole term which is shortened one hundred and eighty days by 18 U.S.C. § 4164 is the one generally applicable in federal criminal cases. If there had been enough time left on Llerena’s sentence for him to be under such general parole for a period, the special parole term would have begun to run at the termination of such period. The fact that less than one hundred eighty days remained on his sentence made general parole inapplicable did not relieve him from the obligations under the mandatory special parole term of at least three years. Any other construction would render meaningless the special parole provisions of the Act which are wholesome not only for society but for the prisoner himself. The original sentence on October 5, 1971, was illegal because it omitted the special parole term. Appeals intervened and Llerena did not begin to serve his sentence until September 26, 1972. When the omission of the special parole term came to the sentencing judge’s attention, he pronounced sentence and entered judgment in pursuance thereof on June 4, 1973, adding the special parole term to conform to the pertinent penalty statutes. That was prior to the decision in the Caille case, supra, and he did not have Llerena present when the corrected sentence was pronounced. On its face, the corrected sentence then imposed complied with the statutes, and would have been legal except for the fact that Llerena was not present. The parties were operating under that judgment until it was set aside on Llerena’s motion on December 17, 1973, challenging its legality because of his absence at the time it was pronounced. At the same hearing, with an Assistant United States Attorney and Llerena present, the Court again pronounced the same corrected sentence that was contained in the judgment of June 4, 1973. If the validity of the sentence of December 17, 1973 had to turn on whether Llerena was free of all imprisonment and parole obligations on that date, our holding would be that he was not. His obligations under the statutory mandatory special parole term could not be discharged until three years after October 26, 1973. The mistakes by the trial judge could not give Llerena immunity from such mandatory parole term.

Affirmed.

      . Lopez was also found guilty on each of two counts charging sales of cocaine.

      . 21 U.S.C. § 841(b)(1)(A) provides in pertinent part: “ . . . Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment . . .”
      21 U.S.C. § 841(c) specifies: “A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.”

      . For convenience, each judgment and commitment will hereafter be referred to as “judgment”.

      . This complied with the following suggestion in Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516, 518 (1957): “ . . .We assume that to avoid double jeopardy the re-sentence must be made effective as of the date of the original sentence; that is, that the defendant is not required to serve again the time he has been imprisoned by reason of the invalid sentence.”

      . The following quotations are from the pertinent statutes on mandatory release:
      “Except as hereinafter provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct . . .”18 U.S.C. § 4163.
      “A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.” 18 U.S.C. § 4164.

      . “ . . . When the district court became aware that the mandatory special parole term provided by 21 U.S.C.A. § 841(b)(1)(A) had not been imposed, it had a duty to comply with the statute . . . ” Caille, supra, 487 F.2d at 615.
      “It has recently been held that the substitution of a valid for an invalid sentence is permissible even if the second sentence is more severe. . .” Thomas, supra, 356 F.Supp. at 174.
      “ . . . The full import of Bozza is that a trial court not only can alter a statutorily-invalid sentence in a way which might increase its severity, but must do so when the statute so provides. . . . ” Thompson, supra, 495 F.2d at 1306.

      . “ . . . Rule 35, provides: ‘The court may correct an illegal sentence at any time’. Such correction does not violate the constitutional rights of a convicted person . ..” Reyes, 262 F.2d at 802.

      . Reference is made to an above quotation from Bozza v. United States, supra, where the Supreme Court said: “ . . The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Neal Allen SHEA, Defendant-Appellant.
    No. 74-1223.
    United States Court of Appeals, Fifth Circuit.
    Feb. 14, 1975.

      Gerald L. Burrows, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, U. S. Atty., Sherman D. Johnson, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEWIN, Circuit Judge:

This appeal is from a conviction on a charge of refusing to submit to induction into the Armed Forces of the United States in violation of 50 U.S.C.App. § 462. Appellant Shea represented himself at trial. He contends on appeal that he did not knowingly, intelligently and willingly waive assistance of counsel and, therefore, argues that his Sixth Amendment right to counsel was violated. He also asserts that he was unduly prejudiced by the local selective service board’s alleged failure to notify him, in compliance with 32 C.F.R. § 1632.2, that his induction was being held in abeyance. Finally, he claims that his local board ignored his admitted narcotics addiction and alleged physical disabilities and improperly declared him fit for induction. We find no merit in his contentions and affirm his conviction.

Shea registered with his local draft board in Marietta, Georgia, on November 9, 1967. He was classified 1A by the local board on November 29, 1968. This classification was not challenged until almost a year later when he was ordered to report for induction. Shea was ordered to report for a physical examination on April 29, 1969. He reported and was found medically qualified by the examining physician at the Armed Forces Entrance and Examination Station (AFEES). On August 25, 1969, he was ordered to report for induction on September 8. He reported and raised several objections to the physician’s finding. He was then allowed time to submit documentary evidence to support his claims of medical disqualification since these claims had not been verified by the examining physician. On September 13, 1969, he signed a security questionnaire (DD Form 398) in which he denounced his support for and his loyalty to the United States government and made known his intention to join the Communist Party of the United States. On November 4, 1969, his selective service file was marked “Acceptability for induction held in abeyance, not presently acceptable for induction.” Shea was not found acceptable by AFEES until May 20, 1970. He was then advised immediately by letter from his local board dated May 25, 1970, that he was eligible for induction and that, pursuant to the original order of August 25, 1969, he should report on June 8, 1970. He then requested a Conscientious Objector Form (CO) (SSS Form 150) from his local board. On June 3, he filed for CO status and on the following day, was advised that the facts in his SSS Form 150 did not warrant a re-opening of his classification. At Shea’s request, he was given a new reporting date of June 15, 1970. He failed to report as ordered. On July 13, 1970, he filed a second SSS Form 150 and was later advised that, as was the case with his first Form 150, this new information did not warrant a re-opening of his classification. Pursuant to the original induction order, Shea was told to report for induction on August 6, 1970. He reported and was again found medically qualified, but he refused induction by choosing not to take the ceremonial step forward.

The file of Shea reflects that at the time of his trial he was twenty-four years old. He graduated from Marietta High School in 1968. He attended Junior College for a time and apparently did extensive reading.

The Sixth Amendment guarantees the right to the assistance of counsel at trial. If a defendant cannot afford to retain his own counsel, he is entitled to a court-appointed attorney. In criminal prosecutions, the Sixth Amendment assures that an individual may not be deprived of life or liberty unless he has counsel, or knowingly, intelligently and voluntarily waives the assistance of counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Courts indulge every reasonable presumption against waiver of a fundamental right, and it is clear that the waiver must be an intentional abandonment of a known right or privilege. The determination of whether a waiver has been made intelligently, willingly, and knowingly depends upon the facts and circumstances of each particular case and upon the background, experience, and conduct of the defendant. Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466. With these elementary principles in mind, we turn our consideration to Shea and the claim that his waiver of counsel was invalid.

The question of voluntary, knowing, and intelligent waiver arose at two stages of Shea’s prosecution: the arraignment and the trial itself. At the arraignment before Judge Edenfield, Shea was told that an attorney would be appointed for him if he could not afford one. When asked if he wished to be represented by an attorney, he answered, “If I could have my own choosing. If not, I rather not.” When told that it was not possible for the court to appoint an attorney of Shea’s own choosing, Shea replied, “Well, I just as soon handle my own defense.” After hearing his plea of not guilty, Judge Edenfield reiterated, “Now, if you decide you want a lawyer appointed, Mr. Shea, you let me know and I’ll appoint one for you.” [Appendix to Government Brief, pp. 3-4]. Shea then signed a written waiver of counsel and entered a plea of not guilty. There is no indication in the record, nor does he contend, that he subsequently requested the appointment of counsel.

At the beginning of the trial before Judge O’Kelley, the following exchange occurred:

THE COURT: All right. Mr. Shea, come up a moment. Have you previously been advised of your right to have an attorney represent you?
DEFENDANT SHEA: Yes.
THE COURT: You understand you have a constitutional right to be represented by an attorney, is that correct?
DEFENDANT SHEA: Yes.
THE COURT: You desire to represent yourself?
DEFENDANT SHEA: Yeah. I suppose I would like to have the attorney for counsel but I was told if I had an attorney he would have to handle the whole thing. I don’t know any of the legal points, what I’m supposed to do,' but I can’t let anybody else speak for me because nobody spoke for me when I refused to go into the Army. (Emphasis added.) [Trial transcript, p. 3]

We must reject Shea’s argument that he did not knowingly, intelligently and voluntarily waive counsel. We are aware that he plainly stated that he would like to manage his own case and yet have an attorney “for counsel.” However, such advisory counsel is not available under 28 U.S.C. § 1654. Under that statute, Shea had a right to appear pro se or to be represented by counsel, but he did not have a right to a hybrid representation, partly by himself and partly by counsel. Lee v. Alabama, 406 F.2d 466 (5th Cir. 1969); Shelton v. United States, 205 F.2d 806 (5th Cir. 1953). See also Duke v. United States, 255 F.2d 721 (9th Cir. 1958). It is clear from the trial transcript that Shea did knowingly, intelligently and willingly choose to speak for himself at trial and, thereby, waived the assistance of counsel. It is not the function of an appellate court to consider the wisdom of such a decision; it is our duty to make sure that the choice was knowingly, intelligently and voluntarily made. In this case, we feel that it was.

Shea next claims that his local selective service board violated 32 C.F.R. § 1632.2 when it placed his induction in abeyance pending a security investigation presumably occasioned by his denunciation of loyalty to the United States and his announcement of intention to join the Communist Party of the United States. The induction was held in abeyance from November 4, 1969, until May 25, 1970. He urges that this delay rendered his induction notice void and that he was under no further duty to report and submit for induction. Section 1632.2 of 32 C.F.R. provides:

(a) In case of death of a member of the registrant’s immediate family, extreme emergency involving a member of the registrant’s immediate family, serious illness of the registrant, or other emergency beyond the registrant’s control, the local board may, after the Order to Report for Induction (SSS Form 252) has been issued, postpone until a date certain the time when such registrant shall report but such date shall not be later than 60 days from the date of such postponement. In case of imperative necessity, the local board may grant one further postponement to a date certain but such date shall not be later than 60 days from the date of such postponement. (Emphasis added.)
* * * * * *
(d) The local board shall issue to each registrant whose induction is postponed a Postponement of Induction (SSS Form 264). A copy of such form shall be mailed to the State Director of Selective Service, and a copy filed in the registrant’s Cover Sheet (SSS Form 101). The local board shall note the date of the granting of the postponement and the date of its expiration in the “Remarks” column of the Classification Record (SSS Form 102).

We do not think that 32 C.F.R. § 1632.2 is applicable to the situation at hand and, therefore, we reject the contention that the failure to comply with the regulation vitiated the induction order. This regulation provides for postponement of induction in cases of serious illness and personal and family emergencies; such was not the cause of the delay in this case. Whatever delay occurred in Shea’s induction was caused by his repeated assertions of physical ailments and other alleged disabilities and because of a necessary security investigation which, in turn, was the result of his unsubstantiated allegations of disloyalty. We do not consider the delay to be chargeable to Shea’s local board and, accordingly, we find that the board had no duty to follow the formal postponement procedures of 32 C.F.R. § 1632.2. See United States v. Malatesta, 447 F.2d 1365 (9th Cir. 1971) and United States v. Evans, 425 F.2d 302 (9th Cir. 1970).

Finally, Shea contends that the induction order was invalid due to his claimed narcotics addiction and alleged physical disabilities. On April 29, 1969, he was found medically qualified for induction by the examining physician at AFEES. At that time, he raised numerous objections to the physician’s finding and, in addition, claimed that he was a drug addict. Since his claimed infirmities were not found by the examining physician, he was advised that he should present supportive documentary evidence to his local board prior to induction. The only documentary evidence that he offered was a lengthy, self-serving letter to his local board in which he painstakingly detailed his earlier allegation of drug addiction and physical impairments. This letter was considered by the examining physicians at AFEES, but no change was made in his medical profile. At a second physical examination on September 8, 1969, Shea was again found medically qualified. He was again advised to present evidence to substantiate his claimed ailments, but no evidence was proffered. Generally, the physical fitness of a registrant is a question for the examining physicians and not one for the courts. This court will not interfere with the opinion of the examining physicians that Shea was medically qualified simply because Shea wrote a letter to his local board claiming he was a drug addict and that he had numerous other disabilities. United States v. Sowul, 447 F.2d 1103 (9th Cir. 1971); United States v. Shunk, 438 F.2d 1204 (9th Cir. 1971); United States v. Haifley, 432 F.2d 1064 (10th Cir. 1970), cert. denied, 401 U.S. 981, 91 S.Ct. 1197, 28 L.Ed.2d 333 (1971); Byrne v. Resor, 412 F.2d 774 (3d Cir. 1969).

Affirmed.

      . It should be noted that appellant’s conscientious objector claim was not raised until after he received his order of induction. In the circumstances of this case it was not appropriate for the draft board to re-open his classification and consider his claim. Such claim should be presented through appropriate military channels after induction. Elhert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971); United States v. Hoffman, 488 F.2d 923 (5th Cir. 1974); United States v. Steiner, 469 F.2d 760 (5th Cir. 1972); Gee v. United States, 452 F.2d 849 (5th Cir. 1971).

      . The written waiver signed by Shea is as follows:
      PT.F.A WITH WAIVER OF COUNSEL I, Neal Allen Shea, defendant having received a copy of the within (information), having been arraigned and having been advised of my Constitutional right to the assistance of counsel and offered counsel by the Court, waive the right to the assistance of counsel and PLEAD not guilty to Count One thereof.
      In Open Court this 29th day of September, 1972.
      /s/ Neal Allen Shea Defendant
      Route 3, Hamby Road Acworth. Georgia 30101 Defendant’s address

      . 28 U.S.C. § 1654 provides:
      “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”

      . To the extent that they conflict with our holding in this case, we decline to follow United States v. Lonidier, 427 F.2d 30 (9th Cir. 1970), and United States v. Stevens, 438 F.2d 628 (9th Cir. 1970).


author: GROOMS, District Judge:

text:
    Mrs. Karen Sue MEALEY, on behalf of herself and the minor children of Jimmy Dale Mealey, and as Administratrix of the Estate of Jimmy Dale Mealey, Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC., Defendant-Appellant. RYDER TRUCK RENTAL, INC., Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC. and William Taft Bryson, Defendants-Appellants.
    No. 73-3456.
    United States of Appeals, Fifth Circuit.
    Feb. 14, 1975.

      Edward L. Saveli, Atlanta, Ga., for defendant-appellant.
    Kyle Yancey, Atlanta, Ga., for Mealey and others.
    Robert B. Hocutt, Atlanta, Ga., for Ryder Truck Rental.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   GROOMS, District Judge:

This is an appeal by Slaton Machinery Sales, Inc. from a judgment on a jury verdict in favor of Karen Sue Mealey on behalf of herself and her minor children, and as Administratrix of the estate of her deceased husband, Jimmy Mealey, for his death; and an appeal by Slaton and William Taft Bryson from a judgment likewise on a jury verdict in favor of Ryder Truck Rental, Inc. for property damage. The actions arose out of a collision during the night of May 2, 1972, on 1-75 near Perry, Georgia, between a truck owned by Ryder, leased to Owens-Illinois Glass Company, and driven by its employee, Herman Rutherford, and a truck owned by Slaton and driven by Bryson. Mealey, also an employee of Owens-Illinois, was asleep in the Ryder truck at the time of the collision which occurred when the Ryder unit ran into the rear of the Slaton unit.

In brief summary the disputed facts were whether Rutherford through inattention or otherwise was solely responsible for the collision, or whether Bryson was negligently driving without lights, angling on the highway, or driving at a speed less than 40 miles per hour, and thereby proximately contributed to the collision.

The drivers were the only eyewitnesses to the collision who testified.

Rutherford testified that at the time of the collision he was driving “probably around 60 miles per hour;” his lights were on low beam; he had a vision range of 50 to 70 feet; he was approximately 50 feet behind the Slaton unit when he first saw it; it was traveling at a speed of no more than 15 to 20 miles per hour and was at an angle on the road with the left front of the trailer over the southbound center line; he hit the trailer right in the center; he could have seen the Slaton unit from a quarter to half a mile if it had had its lights on; and that he could probably have avoided the collision if he had seen the Slaton unit when he was from 150 to 250 feet away.

Bryson testified that he was traveling in a straight line and not at an angle and at a speed of approximately 45 miles per hour; that his lights were burning; that the force of the impact knocked the trailer loose from the tractor, causing him to lose his braking power; and that his tractor came to a stop approximately two blocks away, leaving the trailer sitting in the road near the point of impact.

Appellants assert error for the refusal of their charge No. 6. After an extended colloquy over the applicability of the doctrine of last clear chance or avoidance of consequences, the court concluded that notwithstanding the fact that any negligence of Rutherford was not imputed to Mealey or to Ryder, a bailor of the truck, the doctrine was applicable, but stated that it would give its own avoidance charge, which was practically “the same as your No. 6.” The court then gave its own charge. Following objections of appellee’s counsel and further colloquy, the court called the jury back and withdrew its charge, told the jury that it was incorrect, and to “forget that the doctrine of avoidance and last clear chance is but a doctrine of proximate cause under another name.”

It will be readily observed that charge 6 postulates a finding against the plaintiffs, if Rutherford’s failure to avoid hitting the defendant’s unit intervened and became the proximate cause of the collision rather than the sole proximate cause of it. Unless the last clear chance or avoidance doctrine was applicable, and we hold that it was not, the charge ignores the principle of law that there may be more than one proximate contributing cause of an injury.

The court’s initial charge was based upon Louisville & Nashville R. Co. v. Patterson, 77 Ga.App. 406, 49 S.E.2d 218.

In Georgia Power Co. v. Blum, 80 Ga. App. 618, 57 S.E.2d 18 (1949), the court stated that there was language in Patterson that might indicate that where one has an opportunity to avoid the consequences of another’s negligent act and fails to do so, such failure amounts to the sole proximate cause of the injury to a third person. The court expressed the view that it did not believe that the language was intended to be so construed, “as this rule of law does not apply where a third party, not himself at fault, sues joint tort-feasors.”

The court in its corrected charge followed Atlantic Coast Line R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135 (1955), which had expressly overruled Patterson, and ruled:

“This code section [§ 105-603] and these rules of law — the avoidance doctrine and the last-clear-chance doctrine — apply only where there is a negligent plaintiff. . . . What is here held, among other things, is that the last-clear-chance doctrine cannot be applied in a case where the plaintiff is guilty of no negligence.”

To same effect, Georgia Northern Ry. Co. v. Hathcock, 93 Ga.App. 72, 91 S.E.2d 145, decided at approximately the same time.

Coxwell has been consistently followed. In Hirsch v. Chapman, 109 Ga. App. 444, 136 S.E.2d 409 (1964), the court said:

“In Atlantic Coast Line R.R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135, it was finally made clear that last clear chance does not apply against a non-negligent plaintiff.”

The doctrine was restated in Walker Hauling Co. v. Johnson, 110 Ga.App. 620, 139 S.E.2d 496. And in Stroud v. Will-ingham, 126 Ga.App. 156, 190 S.E.2d 143 (1972), the court clearly recognized the rule.

The court specifically charged the jury that neither plaintiff would be entitled to recover if the negligence of Rutherford was the sole proximate cause of the collision.

There was no error in refusing charge 6. Nor did the court err in withdrawing its erroneous charge and substituting a correct charge. It was the court’s duty to follow that course when it discovered that its initial charge did not correctly state the law of Georgia. At the time the corrected charge was given, there was no motion for mistrial or other objection based on any possible confusion of the jury resulting from the court’s action.

Since we have held that under the facts and applicable law the last clear chance or avoidance of consequences doctrine was inapplicable we need not explore the question as to whether actual knowledge of peril is required or whether constructive knowledge will suffice.

Appellants insist that the court erred in its corrected charge in charging:

“I further charge you that if you find - that this collision occurred solely — and we know what solely means — by reason of the negligence of Herman Rutherford, and that the defendants were not negligent in any particular, then plaintiff would not be entitled to recover of the defendants.”

Appellants assert that the vice of the charge was that the jury was instructed in effect that the absence of negligence on the part of defendants was necessary to absolve them from liability, when actually the defendants could have been negligent and yet their negligence not be the proximate cause of the collision.

This part of the court’s charge cannot be treated in isolation, but must be read with the charge as a whole. Bacon v. Kansas City Southern Ry. Co., 373 F.2d 515 (5th Cir.).

In its initial instruction the court charged that for the plaintiffs to recover the plaintiffs “must show not only that defendant was negligent, but that the negligence was the proximate cause” of the injuries and damages, and that “negligence in and of itself — whether it’s ordinary negligence or negligence as a matter of law is not any cause for the recovery of damages.”

In the paragraph immediately preceding the challenged part of the charge and in that immediately following, the court charged that a recovery was conditioned upon the establishment that “such negligence was a proximate contributing cause of the collision,” and that if the negligence, if any, of Bryson and Rutherford “concurred to bring about or cause this collision,” plaintiffs’ right to recover would not be defeated.

Later when the jury sent a note to the court inquiring if one driver was more negligent than the other whether the verdict should go to the less negligent, the court restated the last quoted part of its prior charge and then stated:

“[L]et me say that negligence in and of itself unless it is a cause of an injury or a contributing proximate cause of an injury is inconsequential. But if both drivers were negligent and if their negligence cooperated and concurred in causing their injuries then the plaintiffs are entitled to recover. Now to illustrate that a little further, if on the other hand, driver Rutherford was negligent and if his negligence was the sole proximate cause of the injuries that would rule out the possibility of there being two causes or any concurrent cause you see.”

In view of the court’s statement and restatement of the correct rule, the jury could hardly have been mislead by the isolated statement of which complaint is now made. We find no error in regard to same.

Appellants assign as error the action of the court in incorporating as part of its oral charge plaintiffs’ requested charge No. 27. The exception did not state distinctly the grounds of their objection. Rule 51, Federal Rules of Civil Procedure, and Gorsalitz v. Olin Mathieson Chemical Corporation, 429 F.2d 1033 (5th Cir.). Nevertheless we do not find error. The charge, illuminated as it was by ample explanation, appears to have correctly stated the law. Rogers v. Johnson, 94 Ga.App. 666, 96 S.E.2d 285, and Sheppard v. Martin, 100 Ga.App. 164, 110 S.E.2d 429.

Appellants further claim error in the charge that the statute relating to the giving of turn signals authorized the giving of such signals by either hand or flashing light, because the evidence clearly showed that failure to give a hand signal could not have been the proximate cause of the collision. In view of the probability that a flashing signal might have been more visible than a hand signal and might have aided Rutherford in seeing the Slaton unit earlier than he did, the charge that he could discharge any duty that he was under by giving the hand signal was not harmful but actually favorable to him. The turn signal statute requires a turn signal only in the event other traffic may be affected by the turn and the court so charged.

Finally, appellants seek a reversal because of the action of the court in allowing an economist to testify from certain government tables as to the work life expectancy of the deceased, and to compute his lifetime earnings based thereon with an assumed annual increase in his pay of 4%.

The economist, Dr. James Crawford, holds a Doctoral degree in economics from the University of Wisconsin, and at the time of his testimony was Professor of Economics and Chairman of the Department of Economics at Georgia State University. His studies required him to make projections of future earnings. He testified that the tables were prepared by the United States Department of Labor, Bureau of Labor Statistics, and were widely used by the Government and by business and industry; that they were a standard work on work life expectancy, and in his opinion were reliable.

For the five full years preceding his death the deceased’s earnings increased 20.9% per year. The witness’s projected assumption of an annual 4% increase in pay was based upon past earnings of teamsters in Georgia, in the Southeastern states, and in the nation at large. With an annual increase of 4% the deceased with a work life expectancy of 25.76 years would have had lifetime earnings of $828,620.00. Using a discount figure of 6% the commuted value was $399,804.00.

The tables were admissible, Central Railroad Co. v. Richards, 62 Ga. 306; Pierce v. Tennessee Coal, Iron & Ry. Co., 173 U.S. 1, 19 S.Ct. 335, 43 L.Ed. 591, and the court did not err in permitting the witness to refer to them. Kershaw v. Sterling Drug Co., 415 F.2d 1009 (5th Cir.). Actually the work life expectancy shown by the tables was 9 years less than his life expectancy as shown by the standard tables which were admitted without objection. The 4% assumed increase was not without evidentiary support. The weight to be given to the tables and to Dr. Crawford’s testimony was for the jury, and in that respect it is noted that the verdict was for only one-half of projected commuted value. The judgments will be and are affirmed.

      . The maximum at the place and time of the collision was 60 miles per hour for trucks and the minimum 40 miles per hour.

      . “If you should find that Defendant Bryson was negligent but that in the exercise of ordinary care Herman Rutherford should have seen the defendant’s unit and avoided hitting it, and that Herman Rutherford’s failure to avoid hitting the defendant’s unit intervened and became the proximate cause of the collision, I charge you that the plaintiffs could not recover in this case.”

      . “A driver of a motor vehicle must anticipate that the roadway ahead may be obstructed by objects normally and legally found upon the roadway, such as other motor vehicles being driven in a lawful and prudent manner, however, a driver is not bound to anticipate the presence on the highway of objects that are illegally placed on the highway.”


author: GODBOLD, Circuit Judge:

text:
    A. L. MASSEY et al., Plaintiffs-Appellants, v. GULF OIL CORPORATION, Defendant-Appellee.
    No. 72-3057.
    United States Court of Appeals, Fifth Circuit.
    Feb. 17, 1975.
    Rehearing and Rehearing En Banc Denied March 21, 1975.

      Michael R. Eubanks, Lumberton, Miss., William A. McKenzie, A. Joe Fish, G. Lee Hart, Dallas, Tex., for plaintiffs-appellants.
    C. Denton Gibbes, Jr., Laurel, Miss., James A. Boone, Gulf Oil Corp., Jackson, Miss., William G. Duck, Gulf Oil Corp., New Orleans, La., for defendant-appel-lee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

This appeal follows a new trial granted by the District Judge. We review the correctness of the order granting that new trial and decide that it was not erroneous.

Plaintiffs own a 1/32 non-participating royalty interest in 122 acres of the Soso Oil Field in Mississippi. They and the other owners of royalty and operating interests in the Soso Field entered into a unitization agreement. This is an agreement under which royalty owners and operators of tracts in a field agree to combine or “pool” the tracts for operational purposes into a single unit to be operated in an integrated manner. See 1A Summers, Oil and Gas, § 104. The Soso Field had been in production several years before the unitization agreement was entered into. Contemporaneously all operating parties joined in an agreement designating Gulf as sole operator of the unit.

Plaintiffs sued Gulf for breach of the contractual obligations owed to them under the unitization agreement by Gulf as the designated operator. Stated briefly, plaintiffs claimed that Gulf “high graded” the unit by extracting only the oil most easily and least expensively available. The case was tried to a jury which found in answer to specific interrogatories that Gulf had failed in several different respects to carry out the obligations placed upon it by the unitization agreement. The jury returned a general verdict for the plaintiffs, assessing their damages at $265,876.

Gulf moved for judgment n. o. v. or for new trial. The trial judge denied the motion for judgment n. o. v. on the ground that there was “substantial factual support from expert witnesses that [the] Unitization Agreement has been breached and violated by the defendant in several material respects.” He granted the motion for new trial and directed a new trial on all issues.

In the second trial the jury found for the defendant Gulf. On this appeal plaintiffs do not challenge any part of the second trial but only the propriety of the order granting that trial. Review of the order properly awaited the entry of a final judgment following the new trial. 6A Moore’s Federal Practice H 59.15[1], at 59 — 273ff; 11 Federal Practice and Procedure (Wright & Miller Ed.) § 2818 at 115-116.

The District Judge set out in a written order his reasons for granting a new trial. Though stated in various ways, the heart of his order is that he considered that the evidence of plaintiffs’ damages, as calculated by plaintiffs’ expert witness and summarized in a single exhibit, lacked credibility. This conclusion was not directed at credibility in the sense of truth versus untruth but in the sense of the lack of accuracy of a complex mathematical computation; ' that is, the calculation of plaintiffs’ damages, as made and summarized by plaintiffs’ expert witness, was not supported by underlying evidence, with the result that the ultimate damage figure could not be accepted as accurate (“credible”). An additional fact noted by the judge was that the damages figure assessed by the jury was precisely one-half of the expert’s ultimate (and insufficiently accurate) figure, which figure reached by the jury was otherwise unrelated to the evidence.

- In this circuit the ruling of a trial judge in either granting or denying a motion for a new trial is reviewable under an abuse of discretion standard. United States for use of Weyerhaeuser Co. v. Bucon Construction Co., 430 F.2d 420 (CA5, 1970); Telfair v. Zim Israel Navigation Co., 428 F.2d 127 (CA5, 1970), cert. denied, 400 U.S. 1009, 91 S.Ct. 568, 27 L.Ed.2d 622 (1971); Willitt v. Purvis, 276 F.2d 129 (CA5, 1960); Marsh v. Illinois Central R. Co., 175 F.2d 498 (CA5, 1949). Although the trial judge’s discretion is broad with respect to the granting of a new trial, the granting of a new trial constitutes reversible error under certain circumstances. See 6A Moore’s Federal Practice 11 59.08[5], at 59 — 162—63.

Our review of an order granting a motion for new trial is somewhat broader than review of an order denying a motion for new trial. In Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (CA5, 1970), drawing at length from Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145 cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), we pointed out that the operative factors underlying review of a ruling on a new trial motion are deference to the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record, deference to the jury’s determination of weight of the evidence and quantum of damages, and the constitutional allocation to juries of questions of fact. We noted that where the judge denies the motion and leaves undisturbed the jury’s determination, all factors press in the direction of leaving the trial judge’s ruling undisturbed. But where the judge has granted a new trial, the factors oppose each other. Deference to the trial judge is subjected to opposing tensions of deference to the jury as the body to whom fact finding is constitutionally allocated and deference to the decision which the jury has reached pursuant to that authority. Furthermore, where a new trial is granted on the ground that the verdict is against the weight of the evidence, we exercise closer scrutiny than where the ground is that some undesirable or pernicious influence has intruded into the trial, because to an extent the judge has substituted his judgment of the facts and credibility of witnesses for that of the jury. Thereby we protect the litigants’ right to jury trial. O’Neil v. W. R. Grace & Company, 410 F.2d 908 (CA5, 1969).

Thus we direct our close scrutiny to the predicate for the granting of a new trial, which in its ultimate thrust was the lack of accuracy of the expert’s calculation as a basis upon which damages could be assessed. Plaintiffs’ primary method for calculating damages was based upon data obtained from records which Gulf was required to and did maintain with respect to the unit. Under the unitization agreement it was necessary to establish a “percentage of participation” (“POP”) for each tract in the unit on the basis of which the production from the unit was allocated to the respective tracts. The amount allocated to a tract would be, of course, distributed among the several parties interested in the tract (both operating parties and royalty owners) on the basis of their respective interests. Thus the POP was the critical factor for determining the return which each royalty owner received from the interest which he had put into the operating unit by joining in the unitization agreement.

An initial POP was calculated for each tract in Zone A of the unit (strata down to 12,000 feet) as of the date of execution of the unitization agreement in 1956. The POP of each tract was the proportion that the “evaluated acre feet” of sand under the tract bore to the aggregate “evaluated acre feet” of sand under all tracts. The agreement specifically recognized that operations would provide additional information which might require altering the initial POP’s and provided for subsequent revisions of POP’s which should take into consideration data obtained from drilling wells and all other available information regarding the extent of the sands. Gulf was obligated to recalculate POP’s at six months’ intervals over a period of 80 months. The last such recalculation, which would fall in mid-1969, was to be the final recalculation and, with exceptions not here relevant, it would govern for Zone A for the remainder of the life of the unitization agreement.

The arrangements with respect to Zone B (strata below 12,000 feet) were substantially the same, except that the initial POP’s were to be established if and when exploration in Zone B resulted in production of oil in commercial quantities. Periodic recalculations of POP’s were required, with the final recalculation, falling in 1968, to govern thereafter for Zone B.

Plaintiffs introduced evidence of their damages calculated by an expert witness, Thomas M. Rogers, a petroleum engineer and lawyer and former employee of the law department of a large oil company. Rogers employed Gulf’s data, utilized by it in making the final recalculation of the POP’s for each tract, in 1959 for Zone A and in 1968 for Zone B. Pursuant to Mississippi regulatory procedures, the final POP’s, when recalculated, were filed of record in each Mississippi county affected, and at the same time Gulf made public the data supporting the final recalculations, consisting for each zone of a large book of data. These books were introduced in evidence. They showed with respect to each tract the acre feet of pay sand. They showed that in making the final recalculations of POP’s, Gulf had applied to this figure various factors such as the porosity of the sand, gas in solution in the oil, a percentage of recovery factor, and prices for oil and gas, these calculations eventuating in a dollar value per acre foot of pay sands in the tract. For each tract Rogers multiplied acre feet of pay sand by value per acre foot — both figures having come from Gulf’s POP data — producing a dollar valuation of the pay sand in the tract. Then he cumulated the valuations for the tracts in the unit, producing what he identified as the total valuation of recoverable oil and gas in the entire unit. He calculated 1/32 of this amount, producing a value of $953,-000. From this he deducted the amount plaintiffs previously had received and a projection of the amount they would receive in the future (based upon Gulf’s records showing oil reserves left in the ground). The final figure thus produced was $531,752, described as the value of plaintiffs’ share of recoverable oil and gas, less amounts previously paid to the plaintiffs and amounts that would be paid to them in the future. Rogers’ compilations of Gulf’s figures and his calculations based thereon were reduced to written tabular form and introduced as an exhibit.

Gulf made no objection to introduction of Rogers’ calculations and did not cross-examine him. No contention was made then or is made now that Rogers erroneously compiled Gulf’s figures or erred mechanically in his calculations based thereon. On appeal, though seeking support from the broad range of discretion accorded trial judges in ruling on motions for new trial, Gulf’s position with respect to this primary method of calculation is, necessarily, very narrow. It is that Rogers’ calculations were so lacking in probative value that the court, in the exercise of its discretion, could set aside the jury’s verdict, which was in an amount less than the amount calculated by Rogers. In support of this contention Gulf argues that the “percentage of recovery factor” of 40% of the oil in the ground, which figure was utilized by it in calculating the POP’s, was not proved by plaintiffs to be the percentage of recovery that should have been attained in the unit by proper operations. It is clear that the 40% figure carried forward into Rogers’ final figures, because it is embraced in the calculation of the value of oil that should have been produced, from which he deducted the amount actually recovered, the difference being, according to his method, the overall shortfall, of which plaintiffs were entitled to 1/32. Gulf urges that the purpose of calculating POP’s is to establish relative shares in production, and that a wholly arbitrary recovery factor can be used in the calculation process, producing computed values that are not factually accurate but nevertheless establish the correct relative position of each participant in the production from the unit. The only substantial testimony concerning the recovery factor was that of Gulf’s reservoir engineer for the field. He explained that the recovery factor was very difficult to estimate, varying in every oil field all over the world, that it could be as low as zero and sometimes as high as 70%, and that in early stages it was “pretty much of a guesstomate.” He explained, that it is common practice to assume 20% recovery, which is about average, that Gulf had studies which said water flooding would be productive in this field, in which case the practice was to assume an additional 20% recovery. The total of 40% was assigned to every reservoir in the Soso field, although “nobody knew what we were going to get.” The witness went on to say:

It wouldn’t have made any difference if they had used 1 or 10 or 40 or a hundred. Nobody’s share of the total would have changed. They would all have been the same.
Q Is that because you were using a common factor throughout?
A Yes sir, we were using a common factor throughout, and when you do that the participation would not have changed any, regardless if you used one or forty or a hundred, it would have still been the same, no change.
Q All right.
A The engineers knew this, they knew they wouldn’t know how much oil they were going to get out of the ground, but it was a good reasonable estimate, they applied it to every reservoir with the full knowledge that it had nothing to do with the value of what we were going to get out of the ground. It was fair because it was applied to every reservoir and to every party, so to calculate your part, it was fair, but it was no way intended, and should never be intended to even resemble the actual value which you were going to get out of the reservoir. Q As a matter of fact, Mr. Sinclair, do you know from your study of these
reserve figures about actual percentages of recovery, that is, the recovery factors in the reservoir?
A Yes sir, in the process of making my estimates of the ultimate oil, and by subtracting of course the cumulative from it to get reserve, it’s necessary to come up with a recovery factor, and after looking at all of the data and all of these years of performance history which unfortunately, the people, at the time of putting this unit together didn’t have, these recovery factors in Soso field in various oil pools are ranging from .3% to as much as 75% of the original oil in place.

What comes through from this testimony is that, while the 40% figure is not purely hypothetical, it was never intended to represent the percentage of recovery that should be obtained by a prudent operator in this field, performing his duties under the contract. But that is the purpose for which Rogers used it.

The plaintiffs suggest alternative approaches to assessment of damages that might support the verdict. There was testimony that an operator usually would have the objective of withdrawing all recoverable oil over a 20-year period at an approximate level rate of withdrawal. Plaintiffs suggest taking the highest royalty received by them in any one year period and projecting it over the years in suit, and deducting from this total the amount they actually received. But this proceeds on the unproven assumption that the highest royalty year is' the same as the annual royalty calculated on the basis of an approximate level withdrawal over 20 years. Additionally, this method, applied to the six years in suit, plus interest at 6%, does not produce damages of as much as the jury verdict.

Shortly before trial Gulf wrote down its reserves for the unit by 21,000,000 barrels. Plaintiffs suggest that this represents the amount of oil actually recoverable but not recovered by Gulf because of its breaches of contract, and attempts to compute damages therefrom. But the evidence does not support an inference that the write-down was related to Gulf’s failures.

Having examined all possible ways of computing plaintiffs’ damages within the liberal rules of this court that damages need not be proved with absolute accuracy, we are not able to say that the District Judge abused his discretion in holding that a new trial was warranted because the amount of damages awarded by the jury was not supported by evidence of sufficient accuracy and reliability. Since the order granting the new trial was not erroneous, the judgment for Gulf following the second trial must be, and is, affirmed.

      . Of course, credibility is usually for the jury and not the court, as is acceptance or rejection of uncontradicted expert testimony. We pretermit consideration of whether a trial judge can validly set aside a verdict and grant a new trial on the single ground that he does not accept as truthful a witness that the jury was entitled to believe, or rejects uncontra-dicted expert testimony that the jury was free to accept.

      . The terminology is unfortunate. The phrase abuse of discretion has no pejorative content. It means to us no more than that the court has clearly erred. 6A Moore’s Federal Practice 1. 59.08[6], at p. 59-175.

      . To be distinguished are cases which have determined the propriety of a trial court’s award of remittitur. This court has held that a trial judge’s remittitur order will be reversed “only where the quantum of damages found by the jury was clearly within ‘the maximum limit of a reasonable range.’ ” Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046 (CA5, 1970), quoting Taylor v. Washington Terminal Co., 409 F.2d 145 (CADC), cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969). We do not decide whether this “maximum recovery rule” applies to an order for a new trial. See United States v. 1160.96 Acres of Land, 432 F.2d 910 (CA5, 1970).

      . This method was consistent with the court’s charge to the jury on the measure of damages:
      [I]f you find from a preponderance of the evidence in this case that the defendant has breached the unitization agreement in some material respect, and you further find that as a proximate result thereof the plaintiffs have been damaged you shall use as a measure of damages, if any, to be awarded the plaintiffs the difference, if any, between the total amount of royalty plaintiffs would have received under the unitization agreement if properly performed and the amount they have received and will receive in the future under said agreement as performed.