106 A.2d 139 | D.C. | 1954
This was a suit on á $2,000 promissory note. John Paul Potter was the maker of the note; his father, John Potter, Sr., was the endorser, and Mid Atlantic Appliances, the payee. The note was given to Mid Atlantic as security for credit extended to John Paul Potter on the purchase of various electrical appliances. It was dated January 20, 1952, and was payable in 90 days. At the conclusion of the trial below the court made a finding in favor of Mid Atlantic for the full amount of the note, plus interest from January 20, 1952. Four days after entry of the judgment the appellees moved to have the judgment set aside “or in the alternative to grant defendants a new trial for the purpose of reopening the judgment. * * * ” The motion was based on that provision of Municipal Court rule 60(b)
Appellant contends that the motion granted was in reality a motion for a new trial based on newly discovered evidence and that it was erroneous to grant a new trial because the motion was made after the entry of judgment. There can be no doubt that this contention would be correct if the motion was in fact one for a new trial, as the rules require that such motions must be made within four days after the entry of the finding.
It is well settled that relief from a final judgment under rule 60(b) lies within the sound discretion of the trial judge.
In order to obtain relief under rule 60(b) appellees were required to establish misrepresentation.
Reversed, with instructions to enter ' judgment for the plaintiff, with interest from July 1, 1952.
. Municipal Court rule 60(b) is substantially the same as rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
. Municipal Court rule 59(b).
. 3 Barron & Holtzoff, Federal Practice & Procedure, § 1323.
. Assmann v. Fleming, 8 Cir., 159 F.2d 332.
. Western Union Telegraph Co. v. Dismang, 10 Cir., 106 F.2d 362.
. Fiske v. Buder, 8 Cir., 125 F.2d 841.
. Snider v. Lyons, 52 App.D.C. 198, 285 F. 932.