155 F.2d 683 | 5th Cir. | 1946
The appeal is from a judgment dated July 26, 1945, amending a judgment fixing the just compensation due Consolidated Naval Stores Company for the taking of its lands by condemnation rendered Aug. 6, 1942, the effect of the amendment being to require the United States to deposit in court an additional sum of $1,542 to meet taxes for the year 1942, claimed by Polk County, Florida.
Consolidated-Naval Stores Company, ap-pellee, moves to dismiss the -appeal on two grounds: 1. That the judgment appealed from was presented to the judge by appellant without notice to appellee, and in legal fraud upon the court and appellee. 2. That the appeal comes too late, the judgment of July 26, 1945, being only a reaffirmance of one dated April 30, 1945, and the appeal not being taken till October 23, 1945.
1. The first ground is supported by a certificate of the judge that counsel for the United States presented the judgment on July 26, representing that it was necessary as a final judgment from which an appeal could be taken, and that it was desired to protect the right to appeal to have advantage of a decision on a similar question pending before the Supreme Court, and the judgment was signed without requiring notice to respondent; that the judgment recites that the matter was before the- court on motion of Consolidated Naval Stores Company which was an error, it being presented entirely by counsel for the United States; that in the orders of April 30, 1945, and July 26, 1945, the Court was not acting to amend the judgment of Aug. 6, 1942, but was making partial distribution of the money paid in under that judgment.
Notwithstanding this certificate, we do not think there was anything wrong in the taking of the judgment by counsel for the United States. The record shows that on April 13, 1944, appellee filed a motion setting up that tax claims for 1942 had arisen, and $3,717 had been held in court from the money awarded it as compensation, and that the United States contended the loss was on appellee; and if that be correct, appellee asserted that the judgment of Aug. 6, 1942, did not include interest at 6% from the date of taking to the deposit of the money in court, as provided by the statute; and the prayer was "that the Court enter an order herein amending the final judgment heretofore entered in this cause on Aug. 6, 1942, by providing that the just compensation to which respondent is entitled is the sum of $286,729 plus interest’ thereon at 6%.” The judge had testimony taken as to the stipulation on which the judgment of Aug. 6, 1942, was based, and after a hearing, on April 17, 1945, rendered an opinion holding that the interest was due by law, that some of the tax claims had not been prosecuted, but that for $1,542 payable to Polk County should be paid, and that appellee should have the $3,717 balance of the money in court, but the United States would be directed to pay into court a further deposit of $1,542 to cover taxes due Polk County. The opinion concludes: “Let an appropriate order be prepared for my approval.” An order was signed on April 30, which recites that it was on “a motion for partial distribution in the cause”, directing the Clerk to pay to appellee the $3,717 on hand. It said nothing about amending the judgment to require the United States to pay $1,542 into court. The order July 26, 1945, presented by counsel for the United States in order to have an appealable judgment (as he stated to the judge) recites that the matter was before the court on the motion of Consolidated Naval Storeá Company to amend the judgment of Aug. 6, 1942; and refers to the above opinion, and adjudges that in pursuance of it the Company should receive the
2. The order of distribution of April 30 was directed to the Clerk. It does not refer to the motion to amend the judg-meent nor to the opinion on that motion. It did not require anything of the United States. While the judgment of July 26 adjudges the distribution of the $3,717 to the Company and confirms it, it for the first time adjudges that the United States pay more. As respects the United States it is the appealable judgment and the appeal from it was taken in time. Under the circumstances the United States is not es-topped from attacking it because its counsel presented it for signature.
3. Appellant contends that the district court was without jurisdiction in 1945 to amend the judgment of Aug. 6, 1942; and that the motion that it be amended was untimely. Before the new Rules of Civil procedure the judge-made law was well settled that, while during the term of the court all its judgments are “in the breast of the court” and subject to its control, after the term ends the final judgments, as distinguished from interlocutory ones, cannot be altered unless on motions made during the term and carried over, or on direct attack for fraud or mistake or some illegality other than mere error. 31 Am.Jur., Judgments, § 727, 728, and cases cited. Rule of Civil Procedure 60(b), 28 U.S.C.A. following section 723c, modifies the term idea, and fixes a limit of six months after the judgment instead. But by Rule 81(a) (7) condemnation cases are not under .those rules except as to appeals, so in this case the law in the district court remains unchanged. We think this judgment of Aug. 6, 1942, which fixed the compensation to be paid by the United States to appellee as the owner of these lands, was a final judgment in this condemnation case, notwithstanding jurisdiction remained to make further orders of distribution. By it title was finally fixed in the United States to the interest described in the petition, “a fee simple absolute, free and clear and discharged from all liens, encumbrances, servitudes, easements, charges, demands, claims, and covenants whatsoever.” And by it was adjudged also, “pursuant to said stipulation before referred to, the fair market value of said lands is the sum of %286,729.”
The stability of a final judgment at law after the term was strongly stated for the federal courts in Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797, and upon the authority of that case similarly stated for the Florida courts in Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825. But in the last cited case a judgment entered not on contest but on consent was set aside by the court on the ground that the consent was not rightly understood by the court in rendering the judgment. Correction of consent judgments after the term was dealt with also in Chrysler Corporation v. United States, 316 U.S. 556, 62 S.Ct. 1146, 86 L.Ed. 1668, and State of Wisconsin v. State of Michigan, 295 U.S. 455, 55 S.Ct. 786, 79 L.Ed. 1541. Differing among ourselves on some points, we need not define what exact limits there are to the power of the court to reopen such judgments, nor the precise grounds which must be shown, nor decide whether sufficient grounds were alleged in this case to require the court to make an enquiry; for we all think that the evidence which was given in the enquiry undertaken by the court was insufficient to authorize a change in the judgment.
4. The evidence showed clearly that on April 17, 1942, after the condemnation proceeding was begun Jan. 19, 1942, counsel for the parties met, the Company stated it had a clear title, free of liens, and no one mentioned taxes of 1942, which however by Florida law attached as a lien
The judgment appealed from is reversed and set aside in so far as it requires the United States to pay an additional sum into court.
Judgment reversed.
Tlie slight reduction is due to a title failure as to a small tract.