Mary Schaaff Greear v. James N. Greear, Jr., and Margaret Sperry Greear , 288 F.2d 466 ( 1961 )

288 F.2d 466

Mary Schaaff GREEAR, Appellant,
v.
James N. GREEAR, Jr., and Margaret Sperry Greear, Appellees.

Nos. 17272-17274.

United States Court of Appeals Ninth Circuit.

March 29, 1961.

Ferdinand J. Mack, of Washington, D. C., for appellant.

No appearance for appellee.

Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.

PER CURIAM.

1

Appellant in these consolidated appeals has moved this court for an order remanding the consolidated record to the district court. The purpose of such remand is so that court may reconsider certain motions, the orders on which are the subject of these appeals, in the light of depositions which through asserted inadvertence were not of record before the district court when such orders were entered.

2

We regard the motion made in this court as in substance one to remand so that the district court may entertain a motion made under rule 60(b)(1), Federal Rules of Civil Procedure, 28 U.S. C.A., to relieve appellant from the orders under review on the ground of mistake or inadvertence or excusable neglect in completing the record before the district court.

3

In such circumstances the proper procedure is for appellant to file its rule 60(b) motion in the district court. If that court indicates that it will grant the motion, appellant should then make a motion in this court for a remand of the case in order that the district court may grant such relief, following which a supplemental record showing such proceedings may be filed in this court. Appellant may appeal from an order of the district court denying the rule 60(b) motion, and appellee may appeal from an order of the district court granting such relief, any such appeal to be consolidated with the pending appeals. See Binks Mfg. Co. v. Ransburg Electro-Coating Co., 7 Cir., 281 F.2d 252, 260-61; Ferrell v. Trailmobile, Inc., 5 Cir., 223 F.2d 697, 699; Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349, 350.

4

The motion to remand is therefore denied without prejudice to the renewal thereof as above indicated. In the event a motion under rule 60(b) is filed in the district court within ten days, the time within which appellant may designate the portions of the record to be printed, as provided in rule 17(6) of this court, 28 U.S.C.A., is extended to ten days after receipt by this court of a supplemental transcript recording the action of the district court in granting or denying such rule 60(b) motion.