First Nat. Bank of Salem, Ohio v. Hirsch
| Decision Date | 10 May 1976 |
| Docket Number | No. 75-2249,75-2249 |
| Citation | 535 F.2d 343 |
| Parties | FIRST NATIONAL BANK OF SALEM, OHIO, Plaintiff-Appellant, v. Harry D. HIRSCH et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Timothy D. Wittlinger, George E. Kuehn, Detroit, Mich., for plaintiff-appellant.
Dale G. Rands, Southfield, Mich., for Hirsch.
Elwood S. Simon, Lawrence G. Campbell, Detroit, Mich., for National Bank of Detroit.
John P. Connolly, Hazel Park, Mich., for Moran.
Lawrence K. Snider, Detroit, Mich., for Cardone, Moran, Ryan.
Before WEICK, EDWARDS and ENGEL, Circuit Judges.
This matter is before the court on the motion of defendant-appellee National Bank of Detroit (NBD) to remand the case to the district court to permit NBD to file, pursuant to Rule 60(b), Federal Rules of Civil Procedure, a motion to vacate judgment.
This case arises out of a dispute between plaintiff-appellant First National Bank of Salem, Ohio (Bank of Salem) and defendant-appellee Harry Hirsch. Hirsch is the former president of C. M. Hall Lamp Company, an Ohio corporation. In 1966, that company instituted an employee pension trust for salaried employees and, as such an employee, Hirsch was covered by the trust. Hirsch, thereafter, left the company and moved to Florida.
On December 11, 1973 plaintiff-appellant obtained a money judgment against Hirsch in the Court of Common Pleas of Columbiana, Ohio, for the unpaid balance on a loan Hirsch had obtained previously from the Bank of Salem. Unable to collect on that judgment, the bank filed the present action in the district court for the Eastern District of Michigan, seeking to satisfy the Ohio judgment out of Hirsch's interest in the pension fund. Named as defendants besides Hirsch, were NBD, the trustee of the pension trust, and Cardone, Moran, and Ryan as members of the pension committee supervising the trust. In addition to seeking a judgment against Hirsch, plaintiff also sought judgment against the other defendants in the amount of Hirsch's interest in the pension fund, and an injunction preventing them from distributing any of that interest to Hirsch directly.
A hearing was held on October 8, 1974. On June 11, 1975, the district judge issued his Findings of Fact and Conclusions of Law. He concluded that while plaintiff was entitled to judgment against Hirsch, it was not entitled to any relief against the trustee or custodians of the pension plan, because a valid spendthrift clause in the pension agreement prevented them from making distributions other than to Hirsch. Bank of Salem has appealed from this portion of the district court ruling.
In its motion to remand, NBD as trustee of the pension plan has alleged that on March 24, 1975 the C. M. Hall Lamp Company was adjudicated bankrupt, and that under the terms of the trust, the adjudication effectively terminates the trust and mandates distribution of its corpus. The motion alleges that the adjudication of bankruptcy occurred several months after hearing on the matter by the district judge and that it rendered the spendthrift clause, the existence of which formed the basis for the district court's denial of relief, totally inoperable. Plaintiff-appellant has filed an answer in support of the motion to remand.
Defendant-appellee Hirsch filed a brief in opposition to the motion to remand. In his answer, Hirsch admitted that the bankruptcy had occurred, but noted that the bankruptcy was approximately four months prior to the district court judgment and that the proposed Rule 60(b) motion would thus not be timely filed. He further contended that assuming the trust had been terminated, NBD as trustee had no right to make any distribution without instructions to do so from the pension committee which had not been given. Finally, Hirsch argued that even if subsequent to the bankruptcy NBD were free to make the distributions, it could not do so in disregard of the spendthrift clause which the pension trust had contained.
This case presents an issue concerning the proper procedure which a party should follow when it seeks to make a motion under Rule 60(b) to vacate the judgment of the district court, after a notice of appeal has been filed. 1 The correct procedure, we think, was outlined by the court in Herring v. Kennedy-Herring Hardware Co., 261 F.2d 202 (6th Cir. 1958).
In Herring, trial was held to the court and the district judge after hearing dismissed plaintiff's cause of action with an accompanying opinion. Plaintiff filed a notice of appeal from the order of dismissal. Thereafter, plaintiff filed in the court of appeals a motion to remand the case to the district court. The basis for the motion was that the court reporter had died subsequent to the decision of the district court, and because of the particular method of shorthand he used, it was impossible to produce an accurate record for appeal from the notes he had prepared. In responding to the motion to remand, the court stated:
The authority to grant a new trial under Rule 59(a) or to relieve a party from a final judgment under Rule 60(b), Rules of Civil Procedure, rests with the District Court, not the Court of Appeals. In accordance with the procedure in an analogous situation, approved in Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349; see also: Metcalf v. United States, 6 Cir., 195 F.2d 213, 218; Hamel v. United States, 6 Cir., 135...
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U.S. v. Rumpf
...a district court of jurisdiction. Some cases hold that there is no retained jurisdiction. See e. g. First National Bank of Salem, Ohio v. Hirsch, 6 Cir., 535 F.2d 343, 345 n. 1; United States v. Lafko, 3 Cir., 520 F.2d 622, 627; and Williams v. Bernhardt Bros. Tugboat Service, Inc., 7 Cir.,......
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S & E Shipping Corp. v. Chesapeake & O. Ry. Co.
...by the state was pending, is predicated upon the unique history and procedure of habeas corpus. First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976), indicates that, absent a remand by the appellate court, a district court may not decide a Fed.R.Civ.P. 60(b) motion to vac......
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...regarding the denial of its motion for summary judgment) pursuant to our decision in First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976). In April 1997, Judge Spiegel recommended returning the matters to the Sixth Circuit and, in January 1998, he repeated this recommen......
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Egger v. Phillips
...Federal Practice and Procedure: Civil Sec. 2873, at 263-65 (1973), commending this practice); First National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 345-46 (6th Cir.1976) (per curiam); see generally, Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 & n. 22 (D.C.Cir.1971), cert......
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Federal court issues
...‘for a remand of the case in order that the District Court may grant the motion for new trial.’ First Nat’l Bank of Salem v. Hirsch , 535 F.2d 343, 346 (6th Cir. 1976).We have never addressed whether the rule 60(b) procedure for new evidence discovered during the pendency of an appeal also ......
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Table of Cases
...107.9, 210.10, 804 Fiorello v. Heckler , 725 F.2d 174, 176 (2d Cir. 1983), 2d-10, §§ 203.6, 1203.6 First Nat’l Bank of Salem v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976), § 606.1 Fischer-Ross v. Barnhart , 431 F.3d 729 (10th Cir. Dec. 16, 2005), 10th-09, 10th-05 Fischer v. Barnhart, 256 F. ......
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Table of cases
...Fiorello v. Heckler , 725 F.2d 174, 176 (2d Cir. 1983), 2d-10, §§ 203.6, 1203.6 A-23 TABLE OF CASES First Nat’l Bank of Salem v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976), § 606.1 Fischer-Ross v. Barnhart , 431 F.3d 729 (10th Cir. Dec. 16, 2005), 10th-09, 10th-05 Fischer v. Barnhart, 256 F.......