Swam v. United States
| Decision Date | 26 February 1964 |
| Docket Number | No. 14280.,14280. |
| Citation | 327 F.2d 431 |
| Parties | Erwin M. SWAM, Plaintiff-Appellant, v. UNITED STATES of America, William Barry, Robert A. Hanselman and Jay G. Philpott, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul H. Ferguson, Robert B. Borchers, Ferguson & Ferguson, Decatur, Ill., for plaintiff-appellant.
Louis F. Oberdorfer, Asst. Atty. Gen., Morton K. Rothschild, Atty. U. S. Dept. of Justice, Washington, D. C., Edward R. Phelps, U. S. Atty., Springfield, Ill., Lee A. Jackson, Robert N. Anderson, Attys. Dept. of Justice, Washington, D. C., for appellees.
Before DUFFY, SCHNACKENBERG, and SWYGERT, Circuit Judges.
Erwin M. Swam, plaintiff, brought this action for damages against the United States and three individuals, Jay G. Philpott, Robert A. Hanselman, and William Barry. Philpott was the district director of Internal Revenue at Springfield, Illinois; Hanselman and Barry were his deputies. The action involved the sale of plaintiff's property for the payment of delinquent federal taxes.
In his complaint plaintiff alleged that he operated an electrical and engineering business in Decatur and Lincoln, Illinois; that a dispute arose with the Internal Revenue Service over the amount of income and unemployment taxes he had withheld from his employees and had not paid over to the federal government; that plaintiff requested the Internal Revenue agents to inform him of the amount "rightfully due," but that Philpott and his deputies "negligently and wrongfully refused" to notify him of the amount of delinquent taxes and penalties owed by him; that the agents conducted a levy, seizure and sale of plaintiff's property purportedly in accordance with Sections 6331 and 6335 of the Internal Revenue Code of 1954; that the highest bid for plaintiff's property was $1,510, although it was reasonably worth in excess of $50,000; that the levy, seizure and sale were illegal in a number of ways because the agents failed to comply with the requirements of the statutes.
Defendants moved to dismiss the action for lack of jurisdiction and for failure to state a claim. The motion was granted January 2, 1963, on the ground that the district court lacked jurisdiction under the Federal Tort Claims Act.
On February 4, 1963, plaintiff filed a motion for leave to file an amended complaint against the individual defendants. Defendants opposed the motion on the ground that it was not timely filed within the ten-day period permitted under Rule 59 of the Federal Rules of Civil Procedure. The district court on February 25, 1963 denied plaintiff's motion to amend because it "came too late and * * * there is no diversity jurisdiction." Thereafter, on March 8, 1963, plaintiff filed a "motion to vacate orders of dismissal and for leave to amend." The motion was denied April 24, 1963. Plaintiff filed his notice of appeal on June 24, 1963.
Defendants request a dismissal of this appeal. They contend that the notice of appeal was filed more than sixty days after the entry of the judgment of dismissal by the district court, contrary to Section 2107, 28 U.S.C. § 2107, and Rule 73(a) of the Federal Rules of Civil Procedure; and that there were no timely motions the granting or denying of which might have extended the sixty-day period. Defendants argue that none of plaintiff's motions filed subsequent to the order of dismissal on January 2nd were timely filed in accordance with rule 59; that the March 8th motion was not filed under Rule 60(b) of the Federal Rules of Civil Procedure; and, therefore, there was no tolling of the time for appeal.
We disagree with defendants' contention because we are of the view that the motion filed March 8th, although not captioned a motion under rule 60(b), must be treated as such. Not only is rule 60 (b) mentioned in the motion but the averments obviously were drafted with that rule in mind.
The appeal was from the order denying the motion of March 8th and there can be no question that it was filed within the period permitted under section 2107 and rule 73(a).
Rule 60(b) was not intended to be an alternative method to obtain review by appeal or as a means of enlarging by indirection the time for appeal. Flett v. W. A. Alexander & Co., 302 F.2d 321 (7th Cir. 1962); Morse-Starrett Products Co. v. Steccone, 205 F.2d 244 (9th...
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...9024 has been made by FCS, and that rule is thus not applicable either. In addition, as the Seventh Circuit held in Swam v. United States, 327 F.2d 431 (7th Cir.1964), cert. den. 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55, Fed.R.Civ.P. 60(b)(1) does not apply to erroneous rulings of law. If a......
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...(7th Cir.1984) ("Plaintiff may not ... use Rule 60(b) to correct alleged errors of law by the district court[.]"); Swam v. United States, 327 F.2d 431, 433-34 (7th Cir.1964) (relief under Rule 60 was properly denied on the grounds that the district court misconceived the character of the cl......
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...1087 (1st Cir.1972) (habeas corpus proceeding). Scola v. Boat Frances, R., Inc., 618 F.2d 147, 153-154 (1st Cir.1980). Swam v. United States, 327 F.2d 431, 433 (7th Cir.), cert. denied, 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (1964). See also Smith and Zobel, Rules Practice § 60.4 (1977). ......
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