Mrs. Lillian Marion Cunningham v. Securities Investment Co. Of St. Louis , 281 F.2d 439 ( 1960 )

281 F.2d 439

Mrs. Lillian Marion CUNNINGHAM, Appellant,
v.
SECURITIES INVESTMENT CO. OF ST. LOUIS, Appellee.

No. 18200.

United States Court of Appeals Fifth Circuit.

Aug. 8, 1960.

Howard W. Lenfant, New Orleans, La., for appellant.

Floyd J. Reed, Jos. S. Kluchin, Jr., New Orleans, La., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

PER CURIAM.

1

In her motion for rehearing, appellant, calling attention to the statement in our opinion: 'The motion was argued, whereupon plaintiff's counsel requested and received additional time to file rebuttal evidence and cross affidavits, but did not file any controversion.', challenges the emphasized words.

2

Conceding that the affidavits of Dr. Leckert and Mrs. Cunningham, attached to the motion for rehearing, though presented to Judge Wright in connection with the hearing on the motion for summary judgment in the case, 'were not sent to the Court of Appeals as part of the record on appeal because the district clerk did not know that they existed, since they had not been filed in his office or in the court room at the time of the hearing of the motion for summary judgment, and were not specifically designated in any designation of the record on appeal.' (Certificate of the District Clerk), counsel insists: that they should be now considered by the court, as they were by the district judge, as part of the record in the cause; and that, because of what they disclose, a rehearing should be granted, and the judgment of affirmance should be set aside.

3

We cannot agree.

4

The statement in the opinion that 'plaintiff's counsel * * * did not file any controversion', based, as it was on the record then before us, was exactly correct. In the light, however, of the supplemental record now presented, showing that the affidavits were filed by plaintiff's counsel with, and considered by, the judge, it was technically erroneous. The objected to words will, therefore, be stricken from the opinion.

5

The affidavits, however, were not in substantial controversion of anything appearing in the discovery depositions of these affiants or otherwise on the hearing of the motion for summary judgment. It is clear, therefore, that there was no real controversion of the case made for summary judgment and equally clear that the court was right in affirming the judgment for the reasons stated in its opinion.

6

The motion for rehearing is denied.