Michigan Surety Co. v. Service Machinery Corp., 17920.
| Decision Date | 22 April 1960 |
| Docket Number | No. 17920.,17920. |
| Citation | 277 F.2d 531 |
| Parties | MICHIGAN SURETY COMPANY, Appellant, v. SERVICE MACHINERY CORPORATION, Inc., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas H. Anderson, Miami, Fla., Robbins, Cannova & Watson, Hollywood, Fla., and Anderson & Nadeau, Miami, Fla., for appellant.
F. E. Gotthardt, Miami, Fla., Morehead, Forrest, Gotthardt & Greenberg, Miami, Fla., for appellee.
Before TUTTLE, JONES and BROWN, Circuit Judges.
A suit was commenced in the Circuit Court of Broward County, Florida, by Nicholas Luciano and others against the appellee, Service Machinery Corporation, Inc. The proceedings were commenced by the attachment of two dredges belonging to the appellee. The appellant became surety on the attachment bond which was to pay all costs and damages which the appellee should sustain if the attachment was wrongfully obtained. On motion of the appellee the Florida court dissolved the attachment. The appellee then sued the surety on the attachment bond in the Federal Court, basing jurisdiction on diversity of citizenship, and claiming damages for breach of the condition of the bond. At the time of the trial counsel for the appellee stated that he and the appellant's counsel were "in agreement that the sole issue * * * is the amount of the reasonable attorney's fees payable to the plaintiff as their damages for obtaining the dissolution of the attachment which was wrongfully issued." Counsel for the appellant concurred in the statement.
Prior to the trial the appellant filed a motion asking leave to amend its answer by alleging that the judgment dissolving the attachment was pending on an appeal to the Florida District Court of Appeal. At a trial without a jury, the appellee asserted a claim for $16,000. The Court, on January 30, 1959, entered judgment for $2,000. On February 6, 1959, the appellant filed a motion for new trial. This motion was denied on May 28, 1959. On June 1, 1959, the appellant filed a motion in which it was recited that on May 27, 1959, the Florida District Court of Appeal had reversed the order of the Circuit Court of Broward County which had dissolved the injunction. See Luciano v. Service Machinery Corp., Fla. App., 112 So.2d 890. By the motion the appellant sought, pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., to have the judgment vacated and the complaint dismissed. The motion was denied. This appeal from the judgment followed.
The portion of the Rule upon which the appellant relies is as follows:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. * * *." Rule 60(b) (5), (6), Fed. Rules Civ.Proc., 28 U.S.C.A.
If there had not been a judgment of the Circuit Court of Broward County, Florida, dissolving the attachment there would have been no cause of action upon the attachment bond. The gravamen of the cause of action in the federal court action was that the attachment "was wrongful and improper and that said Luciano, et al., had no meritorious grounds for the issuance of the writ of attachment." This claim, and the judgment upon it, were dependent upon and hence were based upon the state court judgment that the attachment was improperly sued out. The state...
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