Lenore Foman v. Elvira A. Davis , 292 F.2d 85 ( 1961 )

HARTIGAN, Circuit Judge.

Plaintiff in the instant case appeals from a judgment of the United States District Court for the District of Massachusetts entered following the allowance of defendant’s motion to dismiss and from orders of the district court denying plaintiff’s motion to vacate judgment and to amend her complaint.

The action involves an oral agreement between the plaintiff, Lenore Foman, and her father, Wilbur W. Davis, the decedent, by which decedent agreed to refrain from making a will and to die intestate and plaintiff agreed to assume and pay all expenses for the care and maintenance of decedent’s wife who was also the plaintiff’s mother. Under the alleged agreement, plaintiff would receive a child’s share according to the laws of intestacy of the Commonwealth of Massachusetts. Plaintiff alleged the making of this oral agreement and her subsequent fulfillment of her obligations under it. Plaintiff alleged that her father, in breach of the agreement, executed a Last Will and Testament, duly allowed in the Probate Court for the County of Middlesex, by which he devised and bequeathed virtually all of his estate to defendant, who was his second wife, and bequeathed nothing to the plaintiff. This suit was brought against Elvira A. Davis, decedent’s widow and executrix.

Defendant filed an answer which denied the making of such agreement and set up various defenses, among them, the bar of the statute of frauds. Defendant on the same day also filed a motion to dismiss the action.

The district judge granted the motion to dismiss on the ground that the action on the oral contract was barred by the Massachusetts statute of frauds and judgment was entered on December 19, 1960.

On December 20, 1960 plaintiff filed a motion to vacate the order granting defendant’s motion to dismiss and the judgment thereon in order to permit plaintiff to file a motion to amend her complaint by adding a second cause of action for monies paid and services rendered for and on behalf of the decedent. Plaintiff at the same time filed a motion to so amend and attached the proposed amendment.

On January 17, 1961 plaintiff filed a notice of appeal from the judgment entered December 19, 1960. Subsequently on January 23, 1961 the district court held a hearing on plaintiff’s motions of December 20, 1960 and denied each motion. A notice of appeal from the denial of these motions was filed by plaintiff on January 26, 1961.

Preliminarily there is a question of what is properly before us on appeal. A motion under F.R.Civ.P. 59(e), 28 U.S.C.A., to alter or amend the judgment terminates the running of the time for taking an appeal. See Rule 73. However, a motion under Rule 60(b) does not affect the finality of a judgment or suspend its operation. The plaintiff’s motion seeking the vacating of the dismissal order and judgment does not designate the rule under which it is brought. If the motion to vacate the dismissal order and judgment thereon is construed as one under Rule 59(e), then the appeal taken on January 17, 1961 from the judgment entered on December 19, 1960 was premature, since the running of the time for appeal is terminated by a timely motion under Rule 59(e) and the motion had not yet been disposed of by the district court. See Rule 73; 7 Moore, Federal Practice ¶73.09[6] (2d ed. 1955). On the other hand, if said motion is construed as an effective Rule 60(b) motion, then the finality of the judgment would not have been suspended and the January 17, 1961 appeal would be properly before us.

Although the cases do authorize the vacating of a judgment under both rules in the proper circumstances, Klapprott v. United States, 1948, 335 U.S. 601, 615, 69 S.Ct. 384, 93 L.Ed. 266, judgment modified 1949, 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 1099; Patapoff v. Vollstedt’s Inc., 9 Cir., 1959, 267 F.2d 863; Kelly v. Delaware River Joint Commission, 3 Cir., 187 F.2d 93, certiorari denied 1951, 342 U.S. 812, 72 S.Ct. 25, 96 L.Ed. 614; 6 Moore, Federal Practice ¶59.12[1] (2d ed. 1953), we believe that the full context of the rules dictates that resort should be made to the procedure under Rule 59 if time for applying for such motions has not expired. Cf. Chicago & N. W. Ry. Co. v. Davenport, D.C. S.D.Iowa, 1951, 95 F.Supp. 469, which is criticized in 7 Moore, Federal Practice ¶60.27[2], p. 306 n. 23 (2d ed. 1955). We are unable to find any case which construed a motion to vacate a judgment made within 10 days of the judgment as a Rule 60 (b) motion so that an appeal taken before a disposition of the motion would be timely. Plaintiff’s second notice of appeal could have specified the judgment of December 19, 1960. Lacking such reference, we believe that the appeal insofar as the judgment is concerned must be dismissed. See Aberlin v. Zisman, 1 Cir., 244 F.2d 620, certiorari denied 1957, 355 U.S. 857, 78 S.Ct. 84, 2 L.Ed.2d 63.

In regard to the contention that the district court abused its discretion in not allowing plaintiff’s motions to vacate the judgment and amend her complaint, there is nothing presented by the record to show the circumstances which were before the district court for its consideration in ruling on the motions. We, therefore, cannot say that the district court abused its discretion.

Judgment will be entered dismissing the appeal insofar as it is taken from the district court’s judgment entered December 19, 1960; and affirming the orders of the district court entered January 26, 1961.