Huddleston v. McComas
| Decision Date | 19 April 1960 |
| Docket Number | No. 13957.,13957. |
| Citation | 277 F.2d 677 |
| Parties | Homer HUDDLESTON, Appellant, v. Betty Burr McCOMAS, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Parker W. Duncan, Bowling Green, Ky., and Paul Carter, Tompkinsville, Ky., for appellant.
John S. Cary, Burkesville, Ky., and Cornelius W. Grafton, of Wyatt, Grafton & Grafton, Louisville, Ky., for appellees.
Before MARTIN and WEICK, Circuit Judges, and HOLLAND, Senior District Judge.
On January 21, 1955, in a condemnation suit then pending in the United States District Court for the Western District of Kentucky, an award of just compensation for the taking of an easement across a Kentucky farm was made by a final order. This order determined the matter as to whom the compensation should be paid. In so doing, the Court construed the will of A. A. Huddleston, deceased. There has been no appeal from that order and it has become final.
There is now pending in the Cumberland Circuit Court of Kentucky an action for declaratory judgment seeking a determination with respect to the ownership of the fee simple title to said farm. In said state court action, the appellee, Betty Burr McComas, has pleaded the order of the District Court in said condemnation action entered on January 21, 1955, as res adjudicata with respect to the construction of said will and the ownership of the fee simple title to said farm.
The present action was commenced in the District Court on January 14, 1959, and seeks to set aside the order of the District Court entered in said condemnation action on January 21, 1955, and to order the fund theretofore distributed paid to the appellant. The purpose of the present action was to eliminate any question of the order in the condemnation action being res adjudicata or binding on the state court. The relief is sought under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
The District Court in the present action granted appellee's motion for summary judgment and dismissed the complaint. We think this was proper, but not for the reasons set forth by appellee in said motion.
Appellant had a right to appeal from the order of January 21, 1955, in said condemnation action, but did not do so. He cannot use the present action as a substitute for appeal. We find no basis for allowing relief under Rule 60 (b).
Furthermore, it is not necessary to vacate the order of January 21, 1955, because the order is clearly not res adjudicata of the issues of title involved in the state court action. In the condemnation action, appellant was served with notice in the ...
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...(S.D.N.Y.1956). Though not a substitute for appeal, Wagner v. United States, 316 F.2d 871 (2d Cir., April 25, 1963); Huddleston v. McComas, 277 F.2d 677 (6th Cir. 1960), and subject to the one-year time limitation when the grounds urged for relief fall within clauses (1), (2) or (3), the ru......
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