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Papaliolios v. Durning

Papaliolios v. Durning, 175 F.2d 73 (2d Cir. 1949)
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Court
Court of Appeals for the Second Circuit · U.S. Courts of Appeals
Decided
May 26, 1949
Docket
Nos. 236, Docket 21296
Judges
Frank
Citations
175 F.2d 731949 U.S. App. LEXIS 2336

Opinion of the Court — Frank

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FRANK, Circuit Judge.

1. The gist of the action was the validity of the demand for payment of the fine to obtain clearance in 1948. Since the master, in bringing the action, had been acting for the owner and the agents, payment of the fine by the agents did not, we think, render the action moot. The District Court should have allowed the complaint tO' be amended so that the suit could continue as one for the recovery of the $1,500, Intervention by the agents was permissible under Rule 24(b) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. The District Court had discretion to refuse it, but did not exercise that discretion, basing its determination on a mistaken conclusion that the suit was moot.

2. Absent a showing that the defendant is likely again to repeat the conduct of which plaintiff complains, that part of the action which seeks a declaratory judgment is moot. However, the District Court should allow plaintiffs, should they so request, to amend the complaint to allege facts, if any, showing such a likelihood. See Southern Pac. Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515-516 , 31 S.Ct. 279 , 55 L.Ed. 310 ; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 334-335 , and cases there cited; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105 , and cases there cited.

Reversed and remanded.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1950: 11955: 11964: 11969: 11972: 219502026peak 1972 · 2

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498 (1911) 1,606
Walling v. Mut. Wholesale Food & Supply Co., 141 F.2d 331 (8th Cir. 1944) 54
Walling v. Haile Gold Mines, Inc., 136 F.2d 102 (4th Cir. 1943) 40

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