Greear v. Greear, 17272-17274.

Decision Date29 March 1961
Docket NumberNo. 17272-17274.,17272-17274.
Citation288 F.2d 466
PartiesMary Schaaff GREEAR, Appellant, v. James N. GREEAR, Jr., and Margaret Sperry Greear, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Ferdinand J. Mack, of Washington, D. C., for appellant.

No appearance for appellee.

Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.

PER CURIAM.

Appellant in these consolidated appeals has moved this court for an order remanding the consolidated record to the district court. The purpose of such remand is so that court may reconsider certain motions, the orders on which are the subject of these appeals, in the light of depositions which through asserted inadvertence were not of record before the district court when such orders were entered.

We regard the motion made in this court as in substance one to remand so that the district court may entertain a motion made under rule 60(b)(1), Federal Rules of Civil Procedure, 28 U.S. C.A., to relieve appellant from the orders under review on the ground of mistake or inadvertence or excusable neglect in completing the record before the district court.

In such circumstances the proper procedure is for appellant to file its rule 60(b) motion in the district court. If that court indicates that it will grant the motion, appellant should then make a motion in this court for a remand of the case in order that the district court may grant such relief, following which a supplemental record showing such proceedings may be filed in this court. Appellant may appeal from an order of the district court denying the rule 60(b) motion, and appellee may appeal from an order of the district court granting such relief, any such appeal to be consolidated with the pending appeals. See Binks Mfg. Co. v. Ransburg Electro-Coating Co., 7 Cir., 281 F.2d 252, 260-61; Ferrell v. Trailmobile, Inc., 5 Cir., 223 F.2d 697, 699; Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349, 350.

The motion to remand is therefore denied without prejudice to the renewal thereof as above indicated. In the event a motion under rule 60(b) is filed in the district court within ten days, the time within which appellant may designate the portions of the record to be printed, as provided in rule 17(6) of this court, 28 U.S.C.A., is extended to ten days after receipt by this court of a supplemental transcript recording the action of the district court in granting or denying such rule 60(b) motion.

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11 cases
  • Corn v. Guam Coral Company
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 28, 1963
    ...we agree with the reasoning of Professor Moore. See 7 Moore's Federal Practice, 2d ed. § 60.28, pages 320-321. 14 Compare Greear v. Greear, 9 Cir., 288 F.2d 466, and Creamette Company v. Merlino, 9 Cir., 289 F.2d 569, with Smith v. United States, 9 Cir., 294 F.2d 15 Appellants have not urge......
  • Huneycutt v. Huneycutt
    • United States
    • Nevada Supreme Court
    • March 2, 1978
    ...Company, 261 F.2d 202 (6th Cir. 1958); Binks Mfg. Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252 (7th Cir. 1960); Greear v. Greear, 288 F.2d 466 (9th Cir. 1961); Aune v. Reynders, 344 F.2d 835 (10th Cir. 1965); Duriron Company v. Bakke, 431 P.2d 499 (Alaska 1967); Life of the Land v. A......
  • Canadian Ingersoll-Rand Co. v. Peterson Products, 19266.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 10, 1965
    ...that the procedure being followed was that which was suggested in Creamette Company v. Merlino, 9 Cir., 289 F.2d 569, and Greear v. Greear, 9 Cir., 288 F.2d 466, since both counsel and the court cited those decisions as authority for the procedure being However in both of those cases, it wa......
  • Aune v. Reynders, 7699
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 27, 1965
    ...1005. 19 Creamette Co. v. Merlino, 9 Cir., 289 F.2d 569, 570; Ferrell v. Trailmobile, Inc., 5 Cir., 223 F.2d 697, 699. 20 Greear v. Greear, 9 Cir., 288 F.2d 466, 467. ...
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