Subsection (a) Voluntary Dismissal: Effect Thereof Departmental Advice The fee of $5.00 required by the provisions of U.S. C., Title 28, Sec. 551, to be charged upon the entry of any judgment, decree, or final order, should not be collected if the plaintiff dismisses the action under Rule 41 (a) (1) which provides that an action may be dismissed by the plaintiff without order of court, either by filing a notice of dismissal before the answer is served, or by filing a stipulation of dismissel signed by all the parties who have appeared. (Letter, Quinn to George W. Parker, Clerk, United States District Court, Fort Worth, Texas, dated October 20, 1938; D.J. File No. 123106) Subsection (a) Entry District of Oregon September 30, 1938 United States v. G. W. Jackson, et al. JALES ALGER FEE, D. J. Application has been made in this case for the entry of the default of the defondant. From the record it appears that a judgment for affirmative relief is sought and the defendant has failed to plead or otherwise defend. Appropriate affidavit has been filed. Under Rule 55 this default should be entered by the Clerk as of course without any application to the court. However, since the court has power to enter an order of default and Rule 55 is not a limitation thereof, the court grants the notion and enters the default. In future casos, however, where the requirements set out in the rule are fulfilled, the Clerk will enter a default and no order will be entered by the court. Subsection (a) Grounds District of New Jersey. October 27, 1938 Martha Chesevski, et al. v. Strawbridge & Clothier. AVIS, D. J. MEMORANDUM The above casu was tried at Camden on October 16th, 19th and 20th, 1937, and verdicts rendered as follows: Plaintiffs' attorney procured a rule to show cause why a new trial should not be granted, under which rule oral argument has been hoard and briefs submitted. Plaintiffs' attorney in his argument and briefs submitted that the negligence of defendant was established at the trial; that there was no contributory negligence on the part of any of the plaintiffs, and that the jury so found. While the rule was granted as to all of the plaintiffs, their counsel admits that the verdict for the plaintiff Charles B. Chesevski is substantial, and does not press for a now trial as to this plaintiff. The claim and argument is that, as to the other two plaintiffs, the verdicts are entirely inadequate, and as to them a new trial should be granted, directed only to the amount of the damages assessed. It is clear that this Court has the power to set aside a verdict for inadequacy and order a new trial on that one question. This is established by the cases in the Federal courts as well as in the courts of the State of Now Jersey. See, Casoline Products Co. See, Casoline Products Co., Inc. v. Champlin Refining Co. 283 U. S. 494, 499; May Department Stores Co. v. Fell (CCA 8) 61 F. (23) 830, 842; Robinson v. Payne, Director General, &c., 99, N. J. Law 135. The principle is exhaustively dealt with by Judge Forman in a memorandum, filed February 15, 1934 with the Clerk of this court, in the case of Ella Albrecht, et ux. v. Public Service Interstate Transportation Company, et al. (not reported). |