Brainin v. Melikian

396 F.2d 153 (1968)

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Nature of the Case

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Facts

P filed this diversity action against D and Lloyd K. Rudd, endorsers of a note of Rudd-Melikian, Inc. in the principal amount of $10,000.00 payable ten months after the date with interest at 8% per annum. Between the date of the note's execution on March 21, 1967, and the date of its maturity, and before any payment had been made on it, Rudd-Melikian, Inc. filed bankruptcy proceedings. P accelerated the note's payment date. Upon demand and dishonor, P sued Ds for $10,324.44, the principal amount of the note, plus the 8% interest therein fixed, to the date of the filing of the complaint. D failed to answer within the required time, and a default judgment was entered against him. Service was not perfected on Rudd. D moved to vacate the default judgment, contending that the judgment was entered without jurisdiction because the amount in controversy did not exceed $10,000, 'exclusive of interest and costs', as required by 28 U.S.C. § 1332(a). The District Court denied D's motion. The court held that the interest in this instance was the agreed upon price for the hire of money which is rightly computed as part of the amount to which P is entitled. D appealed. The appeals court affirmed per curiam for the reasons stated in the Opinion of the District Court. D now petitions for a rehearing.