McKinney v. Boyle
Decision Date | 21 April 1969 |
Docket Number | No. 22374.,22374. |
Parties | Mervin C. McKINNEY, Appellant, v. Joseph BOYLE et al., Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Mervin C. McKinney, in pro per.
Kenneth S. Scoville (appeared), Leroy W. Hofmann, Phoenix, Ariz., for appellee.
Before HAMLEY, DUNIWAY and CARTER, Circuit Judges.
Certiorari Denied April 21, 1969. See 89 S.Ct. 1481.
This is a diversity action for damages growing out of an automobile accident which occurred on April 7, 1961. The suit was commenced by Mervin C. McKinney on April 26, 1961. It was dismissed with prejudice on December 4, 1962, pursuant to a stipulation of that date signed by the attorneys for all parties, including plaintiff. On June 16, 1967, plaintiff, proceeding under Rule 60(b), Federal Rules of Civil Procedure, moved to vacate and set aside the order dismissing the action. McKinney appeals from the order denying that motion.
Defendants moved to dismiss the appeal on the ground that the motion had not been filed in the district court within the time provided by Rule 60(b) (3). This would be a reason for affirming the order of the district court denying the motion, but would not be an appropriate ground for dismissing the appeal. The motion to dismiss the appeal is therefore denied.
Plaintiff moved in this court to require defendants to supplement the record by supplying copies of a document, and providing other information not now in the record before us, and which had not been produced in the district court proceedings. The motion is denied.
In his complaint, McKinney sought special damages in an unspecified amount, and general damages in the sum of $50,000. Defendants counterclaimed against McKinney for damages in the sum of $510,450, and cross complained against additional parties for damages in the same amount. As plaintiff, McKinney was represented by one firm of attorneys; as cross defendant, by another firm. Both firms signed the stipulation for dismissal.
The Rule 60(b) motion was made on the ground of "fraud and deceit." In a supporting affidavit, McKinney alleged in substance: He refused all offers of settlement, never accepted or entered into any settlement, never authorized his attorney to settle, never gave his former wife any authority to settle, and never authorized anyone to settle. The defendants and their attorneys and his former wife, who obtained a divorce in February, 1963, conspired to effectuate a settlement by fraud, without McKinney's knowledge, for the purpose of obtaining money for McKinney's injuries. The fraud was known to McKinney's insurance company. McKinney does not know what the settlement was and has received nothing from it. He then says:
Defendants resisted the motion on the sole ground that it was not timely, because not filed within one year, as required by Rule 60(b) and our decision in Kathe v. United States, 9 Cir., 1960, 284 F.2d 713. No evidence, by affidavit or otherwise, was offered in opposition to the motion.1 We assume, therefore, that the court denied the motion as not timely because barred by the one year requirement of the rule. For the purpose of the appeal, we assume that plaintiff's factual allegations are true, as we would on a motion to dismiss.2
The pertinent provisions of Rule 60(b) are:
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