UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. R. S. PERKINS, Ruby A. McGee, PLS Company, a joint venture composed of R. S. Perkins and Ruby A. McGee, John C. Moran, Cooper Burks, the American State Bank, a corporation, Security National Bank, a corporation, Howe Sound Company, a corporation, Murray Director Affiliates, Inc., a corporation, Frank Farris and Lloyd J. Durensky, Appellees (two cases), 388 F.2d 771

Summary

The guaranty company contended that an absolute right to amend existed under Fed. R. Civ. P. 15(a) because its original answer and third-party complaint were filed together, making leave of court unnecessary under Fed. R. Civ. P. 14(a). The court rejected such an interpretation of the scope of Fed. R. Civ. P. 15(a) as much too broad and held that under the circumstances of the case the guaranty company could no longer amend its pleading as a matter of course after electing to stand upon its allegations and perfect an appeal under Fed. R. Civ. P. 54(b). The court concluded that to allow amendments as a matter of right after appeal from and affirmance of an order dismissing a complaint and action would serve to encourage frivolous appeals. The court noted the issues in the third-party complaint were in no way the issues involved in the main case. The third-party claim was for an amount 10 times greater than the judgment in the main case, and arose from 139 separate claims of loss under ...