On Motion for Rehearing.
PER CURIAM.Edward E. Cummings has moved for a rehearing on the ground that the record cannot sustain the decree against him and that he has had no day in court upon the issue decided.
The decree appealed from adjudged that the libelant recover its damages primarily of Chiarello Stevedoring Company and'seeondarily of Cummings. The opinion of the District Court found, in accordance with the allegation of the libel, that by the terms of the charter Cummings agreed to return the barge at the termination of the charter agreement in the samé order and condition as received, ordinary wear and tear- excepted. This finding was doubtless based upon a stipulation, as no evidence was introduced as to the terms of the charter. The stipulation reads: “Incorporation and ownership and the charter in good condition and return in damaged condition is admitted by all parties on the record.”
Cummings now says that the allegation of the libel as to the contract of hire was neither litigated nor proved. But he made no motion in the court below to be relieved of his stipulation, and, although a decree had gone against him, he took no appeal, assigned no errors in this court, and filed no brief. He was apparently willing to allow the decree against him to stand, however erroneous, in the expectation that the stevedoring company would have to pay it. Being disappointed in that expectation he asks, after it has been affirmed, for a retrial. We think the request comes too late. Rule 37 requires an appellee who desires other relief than that granted by the decree to file an assignment of errors. No adequate reason is advanced for not enforcing the rule in the present case.
The motion is denied.