Friedman v. Wilson Freight Forwarding Company, 14294

• Decision Date: 19 July 1963
• Docket Number: No. 14294,14295.,14294
• Parties: Simon FRIEDMAN v. WILSON FREIGHT FORWARDING COMPANY and Fred Hitzeman v. O. STEINMAN, INC., Appellant in No. 14,294. Simon FRIEDMAN v. WILSON FREIGHT FORWARDING COMPANY and Fred Hitzeman v. O. STEINMAN, INC., United Bonding Insurance Company of Indianapolis, Indiana, Appellant in No. 14,295.
• Court: U.S. Court of Appeals — Third Circuit

320 F.2d 244 (1963)

Simon FRIEDMAN v. WILSON FREIGHT FORWARDING COMPANY and Fred Hitzeman v. O. STEINMAN, INC., Appellant in No. 14,294.

Simon FRIEDMAN v. WILSON FREIGHT FORWARDING COMPANY and Fred Hitzeman v. O. STEINMAN, INC., United Bonding Insurance Company of Indianapolis, Indiana, Appellant in No. 14,295.

Nos. 14294, 14295.

United States Court of Appeals Third Circuit.

Argued June 13, 1963.

Decided July 19, 1963.

Bruce R. Martin, Pittsburgh, Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellants.

Samuel M. Rosenzweig, Pittsburgh, Pa. (Aaron Rosenzweig, Pittsburgh, Pa., on the brief), for other appellees.

George I. Buckler, Pittsburgh, Pa., on the brief for appellee Fred Hitzeman.

Before HASTIE, GANEY and SMITH, Circuit Judges.

HASTIE, Circuit Judge.

O. Steinman, Inc., hereinafter called "Steinman", appeals from the district court's denial of its Rule 60(b) motion for relief from a judgment entered against it on February 23, 1961, in favor of Wilson Freight Forwarding Co., hereinafter called "Wilson".

This case began as an action for personal injuries. After a non-jury trial and the making of appropriate findings, the district court, on January 20, 1961, ordered that judgment in the amount of $65,000 be entered for the plaintiff against Fred Hitzeman, whose negligence caused the accident, and Wilson, Hitzeman's employer. The court further ordered that Wilson "has a right of contribution" against Steinman, a joint venturer with Hitzeman, and "may hereafter have judgment against the said Steinman, Inc. for the amount which it proves it has paid the plaintiff, Simon Friedman, in excess of the sum of $32,500 plus interest * * *." This order adjudicated liability over in a manner suggested by this court in Smith v. Whitmore, 3 Cir., 1959, 270 F.2d 741. The formal judgment against Hitzeman and Wilson for $65,000 was entered on January 24, 1961.

Subsequent docket entries, dated February 3, 8 and 22, 1961, show the filing by the plaintiff of a "Praecipe to Satisfy Judgment", the clerk's entry that "Judgment is hereby marked satisfied", and the filing by the plaintiff of a "Release and Receipt" reciting the payment of $65,000 by Wilson to the plaintiff.

On February 23, 1961, the unconditional judgment which is here challenged was entered in favor of Wilson against Steinman for $32,500. Steinman appealed from this judgment, but on December 5, 1961, this court dismissed that appeal for want of prosecution.

Steinman's motion under Rule 60(b) (4), (5) and (6), Federal Rules of Civil Procedure, for relief from the judgment of February 23, 1961, was made on March 15, 1962. It asserted that the judgment over was void because it had been entered against Steinman without a hearing and without proper proof of payment by Wilson to the plaintiff. In addition, the motion asserted that when the original judgment was marked satisfied as to both Wilson and Hitzeman, it ceased to be fair to enforce Steinman's obligation on the theory that its liability was secondary to and derivative from Hitzeman's.

At the hearing on this motion, Steinman made no request to introduce any evidence. There was an admission by counsel in open court that Wilson's insurer paid part of Wilson's judgment obligation and that Hitzeman was not insured. The district court denied the motion and Steinman appealed.

The district court concluded that Steinman's contention based upon the release of Hitzeman was without merit and, in any event, came too late. Without suggesting any disagreement with the district court's position on the merits, we hold merely that Steinman's contention is foreclosed.

Steinman received prompt notice of the entry of the judgment of February 23, 1961. At that time the docket entries and supporting papers which were part of the record of this case showed the evidence of payment upon which the court relied. These papers also showed the release of Hitzeman. If Steinman believed that, in these circumstances, the judgment was improper or inequitable, it could immediately have filed a motion under Rule 59, Federal Rules of Civil Procedure, to alter or amend the judgment. Instead, it waited 13 months to seek relief from the judgment under Rule 60. No excuse has been offered for this delay, although Rule 60 specifies that the extraordinary post-judgment relief which it provides must be sought "within a reasonable time". The court below concluded that Steinman had not moved within a reasonable time. Far from being an abuse of discretion, that...