279 F2d 495 Martin v. Hmb Construction Company

279 F.2d 495

Jimmie MARTIN, Appellant,

No. 18237.

United States Court of Appeals Fifth Circuit.

June 10, 1960.

Sidney Lee, Texarkana, Tex., for appellant.

Norman C. Russell, Texarkana, Tex., Atchley, Russell & Hutchinson, Texarkana, Tex., for appellee.

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


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A judgment based upon a jury's verdict was rendered on October 26, 1959, for the appellant and against the appellee in the amount of $2875.48, consisting of $2125.48 as overtime compensation under the Fair Labor Standards Act of 1938,1 plus $750.00 as attorney's fee. On December 1, 1959, the appellee paid to the Clerk of the court the full amount of the judgment with interest and costs of court. On December 10, 1959, the district court modified its previous judgment, in substance as follows:


"That the sum of $2125.48 recovered by plaintiff constitutes wages from which there is due to the United States of America as withholding tax the sum of $382.49 and that there is due under the Federal Insurance Contributions Act tax in the amount of $53.14; and the $435.63, the total of said sums, should be disbursed by the Clerk to the United States of America in discharge of such obligations and the balance thereof paid to plaintiff, Jimmie Martin and his attorney;


"It is therefore ordered that the Clerk of this Court issue a check to the Director of Internal Revenue in the amount of $435.63 and that said Clerk issue a second check in the amount of $2456.12 payable to Jimmie Martin and his attorney, Sidney Lee."


This appeal is prosecuted from the order modifying the judgment. It is not disputed that such modification was made only after due notice and a hearing. Nor is it disputed that the employer was required to withhold as income tax2 the sum of $382.49, and as Federal Insurance Contributions Act tax3 the sum of $53.14. The district court had authority to modify the judgment so as to relieve the defendant, appellee, for "(6) any * * * reason justifying relief from the operation of the judgment." Rule 60(b) (6), Federal Rules of Civil Procedure, 28 U.S.C.A. Such action of the district court will be reviewed only for abuse of discretion. Seismograph Service Corporation v. Offshore Raydist, Inc., 5 Cir., 1958, 263 F.2d 5, 23. Not only was there no abuse of discretion but the action of the district court was proper. The judgment appealed from is therefore





29 U.S.C.A. § 201 et seq


26 U.S.C.A. § 3402

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26 U.S.C.A. § 3102