From Casetext: Smarter Legal Research

Taft v. Donellan Jerome, Inc.

United States Court of Appeals, Seventh Circuit
Feb 20, 1969
407 F.2d 807 (7th Cir. 1969)

Summary

holding that the specific court which is the victim of the fraud is the only court that can reconsider its own judgments

Summary of this case from Williams v. Vaughn

Opinion

No. 16872.

February 20, 1969.

Anton Dimitroff, Indianapolis, Ind., Barnes, Hickam, Pantzer Boyd, Indianapolis, Ind., of counsel, for plaintiff-appellant.

John W. Edwards, William A. Carroll, Columbus, Ohio, for defendant-appellee, Chastang Carroll, Columbus, Ohio, of counsel.

Before KILEY, FAIRCHILD and KERNER, Circuit Judges.


Plaintiff filed suit in the United States District Court for the Southern District of Indiana to enjoin enforcement of a judgment obtained by the defendant in United States District Court for the Northern District of Illinois. The District Court dismissed the complaint and plaintiff appeals.

In 1953, Donellan, the defendant herein, filed suit in the United States District Court for the Northern District of Illinois against Trylon Metals, Inc., John Buckley and Albert Taft, the plaintiff herein, to recover the cost of merchandise shipped to Trylon on the basis of certain misrepresentations. The marshal's return of service showed personal service on Taft. However, Taft did not appear. As a result, a default judgment was entered against Taft in 1953 in the amount of $9,423.16.

In 1966, Donellan sought to revive and enforce the judgment in the United States District Court for the Northern District of Ohio. Taft opposed revival by filing a motion to vacate under Rule 60(b) of Federal Rules of Civil Procedure, which motion was denied.

Rule 60. Relief from Judgment or Order

The Ohio District Court found that the judgment was on file and, therefore, there was jurisdiction to revive.

In November of 1966 Taft brought an action in the United States District Court for the Northern District of Illinois under Rule 60(b) to vacate the default judgment. The court denied the motion for failure to comply with local Rule 7, designation of a member of the local bar to receive service. A motion to vacate that order was also denied.

Taft had appointed local counsel but the Clerk's office made a mistake in recording it.

Taft, then, filed this action in the United States District Court for the Southern District of Indiana to enjoin enforcement of the judgment and to award Taft $5,000 compensatory damages and $5,000 punitive damages. Taft appeals from the granting of defendant's motion to dismiss.

In the first complaint, Taft failed to include the claims for damages and the defendant filed a motion to dismiss for lack of jurisdiction. Taft, then, amended his complaint to include a count for damages.

Plaintiff has an adequate remedy at law and since he failed to exhaust his legal remedies under Rule 60(b)(4), he should not be allowed to bring an equitable action in another jurisdiction.

Plaintiff attacks the 1953 judgment on two bases: lack of jurisdiction over the person and fraud on the court. Certainly, under F.R.Civ. Pro. 60(b)(4), plaintiff may attack the judgment for lack of jurisdiction over the person at any time since a judgment rendered without jurisdiction over the person would be void. While a signed return showing service by the marshal is prima facie evidence of valid service, a party may still have his day in court to prove otherwise. Hicklin v. Edwards, 226 F.2d 410 (8th Cir. 1955). While plaintiff does not have an adequate remedy under Rule 60(b)(3) for fraud, Rule 60(b) does not "limit the power of the court * * * to set aside a judgment for fraud upon the court." Such motion must be brought in the court which rendered the original judgment. 7 Moore, Federal Practice ¶ 60.33 at 504-05 (2d ed. 1968).

Under Rule 60(b) a motion to upset a judgment for fraud may only be brought within a year after judgment is rendered.

Therefore, since plaintiff has an adequate remedy at law, this equitable cause of action must be dismissed.

Plaintiff's claim for compensatory and punitive damages is based on his success in voiding the prior judgment and must therefore be dismissed.

Affirmed.

* * * * *

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 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: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (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. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C. § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. As amended Dec. 27, 1946, and Dec. 29, 1948, effective Oct. 20, 1949.


Summaries of

Taft v. Donellan Jerome, Inc.

United States Court of Appeals, Seventh Circuit
Feb 20, 1969
407 F.2d 807 (7th Cir. 1969)

holding that the specific court which is the victim of the fraud is the only court that can reconsider its own judgments

Summary of this case from Williams v. Vaughn

entertaining challenge to jurisdiction 13 years after final judgment

Summary of this case from Hertz Corp. v. Alamo Rent-A-Car, Inc.

explaining that the court which was the victim of the fraud is the only court that can decide the question and it cannot be raised in an independent action

Summary of this case from Vaughan v. Ky. Army Nat'l Guard

stating that plaintiff's action filed in the United States District Court for the Southern District of Indiana seeking to set aside a judgment from the United States District Court for the Northern District of Illinois based on fraud on the court must be brought in the court which rendered the original judgment

Summary of this case from Atkins v. Heavy Petroleum Partners, LLC
Case details for

Taft v. Donellan Jerome, Inc.

Case Details

Full title:Albert A. TAFT, Plaintiff-Appellant, v. DONELLAN JEROME, INC.…

Court:United States Court of Appeals, Seventh Circuit

Date published: Feb 20, 1969

Citations

407 F.2d 807 (7th Cir. 1969)

Citing Cases

Trustees of Local Union No. 727 Pension Fund v. Perfect Parking, Inc.

Moreover, Rule 60(b)' s requirement that motions be made within a reasonable time does not apply to void…

Indian Head Nat. Bank of Nashua v. Brunelle

Recognition that Rule 60(b) motion practice was intended for the rendering court has led some courts to hold…