271 F2d 606 Fulenwider v. Wheeler

271 F.2d 606

Hal FULENWIDER, Jr., and Marion Fulenwider, individually and as co-partners d/b/a Easy Glitter Wax Co., Appellants,
v.
Elmer WHEELER, Appellee.

No. 17878.

United States Court of Appeals Fifth Circuit.

October 30, 1959.

Walter Humkey, Phillip W. Knight, Miami, Fla., Fowler, White, Gillen, Humkey & Trenam, Miami, Fla., of counsel, for appellants.

Don G. Nicholson, Henry M. Sinclair, Miami, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

PER CURIAM.

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1

Upon the remand of the judgment of this Court in the prior appeal of the Fulenwiders from the judgment denying their motion to vacate the judgment in favor of Wheeler, Fulenwider v. Wheeler, 5 Cir., 262 F.2d 97, the appellants filed a second motion to vacate the judgment. This motion, filed on March 11, 1959, was predicated on the same "facts and claims" as had been asserted in the original motion. Before the entry of an order on this second motion the Fulenwiders filed, on March 27, 1959, what they denominated an "independent proceeding" seeking to set aside the judgment. They here state: "It is conceded that the same facts and claims were asserted as had been asserted on all previous occasions."

2

The trial court, on May 19, 1959, entered an order dismissing this action with prejudice. In view of the then pendency of the motion seeking the same relief, and in view of appellants' contention here that the "independent proceeding" was in fact ancillary to and a part of the principal case, this order was not erroneous. It is affirmed.

3

The trial court thereafter entered a final order denying the March 11th motion to vacate "with prejudice." This concluded the merits of the appellants' contention that they should have a new trial on the basis of alleged false testimony which was fully discussed in the earlier opinion of this Court. Disposing of the appeal from that order on the merits, the judgment is affirmed. See 262 F.2d 97. The mandate shall issue forthwith and the stay heretofore entered is dissolved.

4

Affirmed.