Lane v. Swingspout Measure Co.

• Decision Date: 15 December 1964
• Docket Number: No. 14658.,14658.
• Citation: 340 F.2d 40
• Parties: Lee E. LANE, Plaintiff-Appellant, v. SWINGSPOUT MEASURE CO., a corporation, The Trell Company, Thomas F. Lannin, Lannin Sales Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

340 F.2d 40 (1964)

Lee E. LANE, Plaintiff-Appellant, v. SWINGSPOUT MEASURE CO., a corporation, The Trell Company, Thomas F. Lannin, Lannin Sales Company, Defendants-Appellees.

No. 14658.

United States Court of Appeals Seventh Circuit.

December 15, 1964.

Paul H. Gallagher, Lee C. Korbakes, Chicago, Ill., for appellant.

Roscoe C. Nash, John B. Kemp, Chicago, Ill., for appellees.

Before DUFFY, SCHNACKENBERG and CASTLE, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff commenced this suit to recover damages for alleged violation of federal anti-trust laws as well as for alleged breach of certain agreements between plaintiff and one of the defendants.

Defendants filed a motion for summary judgment which the District Court granted, and judgment was entered dismissing the complaint. Within thirty days thereof, plaintiff filed a notice of appeal to this Court. Thereafter, plaintiff obtained extensions of time to docket the appeal and to file the record on appeal in this Court. This extension of time would have expired on December 12, 1963.

Approximately twenty days prior to December 12, 1963, plaintiff presented a motion to the District Court for leave to withdraw his appeal, and on November 21, 1963, the District Court granted plaintiff's motion to withdraw the appeal, and it was so ordered.

On December 30, 1963, plaintiff presented a motion to the District Court under Rule 60, Federal Rules of Civil Procedure, seeking a vacation of the order of November 21, 1963, which order had permitted the withdrawal of the appeal. On March 4, 1964, an order was entered by the District Court denying plaintiff's motion to vacate and set aside the order of November 21, 1963. It is from the order of March 4, 1964 that this appeal is taken.

Rule 60(b) provides in part: "On motion and upon such terms as are just, the court may relieve a party or his legal representatives from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * *".

Plaintiff here argues that the order which allowed the withdrawal of his appeal to this Court was the result of mistake and inadvertence on the part of plaintiff's counsel in reaching the erroneous conclusion that the legal authorities and judicial precedents upon which counsel had relied in his brief filed in opposition to the motion for summary judgment, would probably be insufficient upon which to predicate a successful appeal.

We have consistently held that a motion to vacate a judgment under Rule 60(b), Federal Rules of Civil Procedure, is addressed to the sound discretion of the court and its determination will not be disturbed upon appeal except for an abuse of discretion. Securities & Exchange Commission v. Farm and Home Agency, Inc., 7 Cir., 270 F.2d 891, 892; Darlington v. Studebaker-Packard Corporation, 7 Cir., 261 F.2d 903, 905; Jones v. Jones, 7 Cir., 217 F.2d 239, 241.

It is also well established that Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances. Hulson v. Atchison, T. & S. F. Ry. Co., 7 Cir., 289 F.2d 726, 730; Flett v. W. A. Alexander & Co., 7 Cir., 302 F.2d 321, 324.

In Flett, we said, page 324: "There can be little doubt that plaintiff attempted to use Rule 60(b) as a substitute for the appeal he deliberately chose not to take. ...