H & F Barge Company, Inc., Plaintiff-appellee, v. Garber Brothers, Inc. and Charles L. Garber, Individually,defendants-appellants, 534 F.2d 1103 (5th Cir. 1976)

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U.S. Court of Appeals for the Fifth Circuit - 534 F.2d 1103 (5th Cir. 1976) July 6, 1976

Joaquin Campoy, William S. Stone, New Orleans, La., for defendants-appellants.

Charles M. Steen, F. Kelleher Riess, Bruce A. North, New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM,^* GODBOLD and LIVELY,^** Circuit Judges.

PER CURIAM:

With the following addition, the judgment below is affirmed on the basis of the opinions of the district court appearing at --- F. Supp. ----.

The defendant contends that appointment of a magistrate as special master to determine damages was reversible error. The magistrate was not appointed pursuant to the Federal Magistrate's Act, 28 U.S.C. § 636(b) (1), nor under Fed. R. Civ. P. 53(b), but explicitly under Rule 55(b) (2). The matter is not jurisdictional, nor was the question raised in the court below, thus it may not now be asserted for the first time.

AFFIRMED.

Judge Wisdom was a member of the panel that heard oral arguments but due to illness did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d)

Of the Sixth Circuit, sitting by designation

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