Foman v. Davis, No. 5808.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtWOODBURY, , and HARTIGAN and ALDRICH, Circuit
Citation292 F.2d 85
PartiesLenore FOMAN, Plaintiff, Appellant, v. Elvira A. DAVIS, Executrix, Defendant, Appellee.
Decision Date17 August 1961
Docket NumberNo. 5808.

292 F.2d 85 (1961)

Lenore FOMAN, Plaintiff, Appellant,
v.
Elvira A. DAVIS, Executrix, Defendant, Appellee.

No. 5808.

United States Court of Appeals First Circuit.

June 26, 1961.

Rehearing Denied August 17, 1961.


292 F.2d 86

Henry N. Silk, Boston, Mass., with whom Guterman, Horvitz & Rubin, Boston, Mass., was on brief, for appellant.

Roland E. Shaine, Boston, Mass., with whom Brown, Rudnick, Freed & Gesmer, Boston, Mass., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

HARTIGAN, Circuit Judge.

Plaintiff in the instant case appeals from a judgment of the United States District Court for the District of Massachusetts entered following the allowance of defendant's motion to dismiss and from orders of the district court denying plaintiff's motion to vacate judgment and to amend her complaint.

The action involves an oral agreement between the plaintiff, Lenore Foman, and her father, Wilbur W. Davis, the decedent, by which decedent agreed to refrain from making a will and to die intestate and plaintiff agreed to assume and pay all expenses for the care and maintenance of decedent's wife who was also the plaintiff's mother. Under the alleged agreement, plaintiff would receive a child's share according to the laws of intestacy of the Commonwealth of Massachusetts. Plaintiff alleged the making of this oral agreement and her subsequent fulfillment of her obligations under it. Plaintiff alleged that her father, in breach of the agreement, executed a Last Will and Testament, duly allowed in the Probate Court for the County of Middlesex, by which he devised and bequeathed virtually all of his estate to defendant, who was his second wife, and bequeathed nothing to the plaintiff. This suit was brought against Elvira A. Davis, decedent's widow and executrix.

Defendant filed an answer which denied the making of such agreement and set up various defenses, among them, the bar of the statute of frauds. Defendant on the same day also filed a motion to dismiss the action.

292 F.2d 87

The district judge granted the motion to dismiss on the ground that the action on the oral contract was barred by the Massachusetts statute of frauds and judgment was entered on December 19, 1960.

On December 20, 1960 plaintiff filed a motion to vacate the order granting defendant's motion to dismiss and the judgment thereon in order to permit plaintiff to file a motion to amend her complaint by adding a second cause of action for monies paid and services rendered for and on behalf of the decedent. Plaintiff at the same time filed a motion to so amend and attached the proposed amendment.

On January 17, 1961 plaintiff filed a notice of appeal from the judgment entered December 19, 1960. Subsequently on January 23, 1961 the district court held a hearing on plaintiff's motions of December 20, 1960 and denied each motion. A notice of appeal from the denial of these motions was filed by plaintiff on January 26, 1961.

Preliminarily there is a question of what is properly before us on appeal. A motion under F.R.Civ.P. 59(e), 28 U.S. C.A., to alter or amend the judgment terminates the running of the time for taking an appeal. See Rule 73. However, a motion under Rule 60(b) does not affect the finality of a judgment or suspend its operation. The plaintiff's motion seeking the vacating of the dismissal order and judgment does not designate the rule under which it is brought. If the motion to vacate the dismissal order and judgment thereon is construed as one under Rule 59(e), then the appeal taken on January 17, 1961 from the judgment entered on December 19, 1960 was premature, since the running of the time for appeal is terminated by a timely motion under Rule 59(e) and the motion had not yet been disposed of by the district court. See Rule 73; 7 Moore, Federal Practice ¶ 73.096 (2d ed. 1955). On the other...

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13 practice notes
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • 22 d2 Julho d2 1969
    ...Page 116 court's own error. See Stevens v. Turner, 222 F.2d 352 (7th Cir. 1955); cf. Turner v. HMH Publishing Co., supra; Foman v. Davis, 292 F.2d 85, 87 (1st Cir. 1961) (reversed on other grounds 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 This Court should at least follow the federal rule i......
  • Runnion v. Girl Scouts of Greater Chi., No. 14–1729.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 d5 Maio d5 2015
    ...as a Rule 59(e) motion, and because of some confusion about the timing of a notice of appeal, the appeal was dismissed. Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961). The Supreme Court reversed, and it applied the liberal amendment policy of Rule 15(a)(2) to the post-judgment motion for re......
  • Wallace v. Warehouse Employees Union, No. 83-885.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 12 d5 Outubro d5 1984
    ...of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Dove, supra note 10, 569 F.2d 807; Foman v. Davis, 292 F.2d 85 (1st Cir. 1961), reversed on other grounds, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). 13. 6 MOORE'S FEDERAL PRACTICE, supra, ¶ 59.04[7]: see ......
  • Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., No. 82-4584
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 d3 Março d3 1986
    ...20 Dove v. Codesco, 569 F.2d 807, 809 (4th Cir.1978). Accord Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961), rev'd on other grounds, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 4......
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13 cases
  • Coeur D'Alene Turf Club, Inc. v. Cogswell, No. 10451
    • United States
    • Idaho Supreme Court
    • 22 d2 Julho d2 1969
    ...Page 116 court's own error. See Stevens v. Turner, 222 F.2d 352 (7th Cir. 1955); cf. Turner v. HMH Publishing Co., supra; Foman v. Davis, 292 F.2d 85, 87 (1st Cir. 1961) (reversed on other grounds 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 This Court should at least follow the federal rule i......
  • Runnion v. Girl Scouts of Greater Chi., No. 14–1729.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 d5 Maio d5 2015
    ...as a Rule 59(e) motion, and because of some confusion about the timing of a notice of appeal, the appeal was dismissed. Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961). The Supreme Court reversed, and it applied the liberal amendment policy of Rule 15(a)(2) to the post-judgment motion for re......
  • Wallace v. Warehouse Employees Union, No. 83-885.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 12 d5 Outubro d5 1984
    ...of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Dove, supra note 10, 569 F.2d 807; Foman v. Davis, 292 F.2d 85 (1st Cir. 1961), reversed on other grounds, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). 13. 6 MOORE'S FEDERAL PRACTICE, supra, ¶ 59.04[7]: see ......
  • Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., No. 82-4584
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 d3 Março d3 1986
    ...20 Dove v. Codesco, 569 F.2d 807, 809 (4th Cir.1978). Accord Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961), rev'd on other grounds, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 4......
  • Request a trial to view additional results

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