Oliver v. City of Shattuck

• Decision Date: 22 August 1946
• Docket Number: No. 3282.,3282.
• Citation: 157 F.2d 150
• Parties: OLIVER et al. v. CITY OF SHATTUCK ex rel. VERSLUIS.
• Court: U.S. Court of Appeals — Tenth Circuit

157 F.2d 150 (1946)

OLIVER et al. v. CITY OF SHATTUCK ex rel. VERSLUIS.

No. 3282.

Circuit Court of Appeals, Tenth Circuit.

August 22, 1946.

Duke Duvall, of Oklahoma City, Okl. (Dudley, Duvall & Dudley, of Oklahoma City, Okl., on the brief), for appellants.

L. W. Randolph, of Muskogee, Okl. (Chal S. Wheeler, of Muskogee, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

These appellants, as owners of property within a street improvement district in the City of Shattuck, Oklahoma, were defendants in two actions to foreclose statutory liens for delinquent street improvement assessments, wherein the court fixed the liens and decreed foreclosure of the property of the various owners in the district. The two actions (Nos. 874 and 882) involved common questions of law and fact. The appellants here did not appeal from the judgment entered against them in either case, but the Board of County Commissioners of Ellis County, as joint defendant, in cause No. 874 appealed to this court from the judgment in that case and we reversed, holding that the asserted tax lien had been extinguished, consequently no right of foreclosure existed. Board of County Commissioners of Ellis County v. City of Shattuck ex rel. Versluis, 10 Cir., 140 F.2d 67. The trial court entered judgment accordingly.

After the mandate of this court in the appealed case, the bondholder issued execution in the unappealed case, whereupon these appellants filed their "motion for relief from judgment." The motion alleged that at the time judgment was entered in the two cases, the attorney for the bondholder and the attorney for the property owners entered into an oral agreement whereby in order to "simplify matters and save unnecessary expenses," these appellants would not take an appeal from the judgment in No. 882, but that the ultimate judgment in that case would abide the final disposition of the appealed case. It was alleged that except for this oral agreement the parties would have appealed and reversed the judgment against them, and that they were therefore entitled to have the court enter a judgment in the unappealed case in accordance with the judgment in the appealed case. The appellee bondholder denied the alleged oral agreement and alleged that the judgment was entered in the unappealed case with the full knowledge and consent of appellants' attorney; that he acquiesced and concurred in the form and contents thereof and that no reservation of any kind was made in the judgment.

Treating the motion as one based upon "excusable neglect" under Federal Rules of Civil Procedure, rule 60(b) 28 U.S.C.A. following section 723c, the trial court held that since under the rule such motion must be filed within six months from the date of the judgment, and the appellants having failed to file the same within that period, the court was without jurisdiction to entertain it. The court was further of the opinion that if the motion be treated as an independent action in the nature of a bill of review, relief could not be granted because (1) there was no error of law apparent upon the face of the record; (2) there was no new evidence discovered since the judgment was entered which would materially affect the judgment or probably induce a different result; and (3) there was no fraud in procuring the judgment. The motion was accordingly denied and this appeal followed.

Rule 60(b) authorizes the court to relieve a party from a judgment, order or proceedings taken against him through "mistake, inadvertence, surprise, or excusable neglect," providing the motion is made within a reasonable time, and within six months after the judgment was taken. Of course, it is patent that since upon the face of the record the motion was not made until more than six months after the rendition of the judgment, the court is not authorized to grant relief based upon any grounds provided in the rule. See Norris v. Camp, 10 Cir., 144 F.2d 1; Wallace v. United States, 2 Cir., 142 F.2d 240. But, as the trial court recognized, the rule contains a "saving provision," the manifest purpose of which is to preserve intact and unimpaired the inherent power of the courts to entertain remedial actions for relief against judgments traditionally recognized at common law, such as writs of coram nobis, actions in the nature of bills of review and actions for a writ of audita querela. Norris v. Camp, supra; Wallace v. United States, supra; Bucy v. Nevada Const. Co., 9 Cir., 125 F.2d 213; Fiske v. Buder, 8 Cir., 125 F.2d 841; International Ry. Co. v. Davidson, D.C., 65 F. Supp. 58; Moore's Federal Practice, p. 3255. In other words, the judicial process was not rendered less flexible by the advent of the new rule.¹

We need not stop to consider whether the trial court correctly denied relief under the motion as a bill of review, since as we have seen, the court was not limited to this remedy in determining whether relief against the judgment should, or could be granted. According to its ancient precepts, the writ of audita querela was invented to afford relief in behalf of one against whom execution had been issued or was about to be issued upon a judgment, which it would be contrary to justice to allow to be enforced, because of matters arising subsequent to the rendition thereof. 3 Blackstone 405; Vol. 5 Amer.Juris. p. 491; Bouv.Law Dict., Rawle's Third Rev., p. 288; Humphreys v. Leggett, 9 How. 297, at page 312, 50 U.S. 297, at page 312, 13 L.Ed. 145; Kelley v. Kelley, Mo.App., 290 S.W. 624; Baker v. Penecost, 171 Tenn. 529, 106 S.W.2d 220. It is a direct action, essentially equitable in nature. It contemplates a valid defense to the judgment, and the absence of a legal remedy, including the right of appeal. Robertson v. Commonwealth, 279 Ky. 762, 132 S.W.2d 69; Barnett v. Gitlitz, 290 Ill.App. 212, 8 N.E.2d 517; Vol. 4, Words and Phrases, Perm.Ed., p. 817; Vol. 5 Amer.Juris., p. 491. In modern practice, the writ has been supplanted by the more simple and expeditious motion to vacate or, as here, for relief against the judgment, based upon equitable grounds. See Jones v. Watts, 5 Cir., 142 F.2d 575; In re Drainage Dist. No. 7, D.C., 25 F.Supp. 372, affirmed Luehrmann v. Drainage Dist. No. 7 of Poinsett County, 8 Cir., 104 F.2d 696, certiorari denied Haverstick v. Drainage Dist. No. 7 of Poinsett County, 308 U.S. 604, 60 S.Ct. 141, 84 L.Ed. 505; Vol. 5 Amer.Juris., p. 494; Bou.Law Dict., Rawle's Third Rev., p. 288. See Moore & Rogers, Relief from Civil Judgments, Yale Law Journal, issue of June 1946, p. 659.

Without pains to label the form of the action or the remedy, courts have never hesitated to grant equitable relief against a judgment, if to execute it would give the judgment creditor an unconscientious advantage procured through his own fraud or some excusable mistake, or unavoidable accident on the part of...