238 F2d 263 Jurin v. Wiltshire Parkway

238 F.2d 263

Pearl JURIN, Appellant,


WILTSHIRE PARKWAY, Inc., The Lenkin Realty Company, and Westinghouse Electric Corporation, Appellees.

No. 13147.

United States Court of Appeals District of Columbia Circuit.

Argued October 9, 1956.

Decided November 1, 1956.

Mr. James C. Toomey, Washington, D. C., for appellant.

Mr. H. Mason Welch, Washington, D. C., was on the brief for appellee Wiltshire Parkway, Inc.

Mr. Myer Koonin, Washington, D. C., was on the brief for appellee Lenkin Realty Co.

Mr. John P. Arness, Washington, D. C., was on the brief for appellee Westinghouse Electric Corp.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and BURGER, Circuit Judges.


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The District Court dismissed the plaintiff's complaint May 5, 1954. Fifteen months later, on August 9, 1955, plaintiff's counsel filed an affidavit in which he said that on or about April 30, 1954, "the Court indicated orally from the bench that the case should be dismissed on the basis that the plaintiff failed to state a cause of action against any of the parties defendant. Thereafter, on May 5, 1954 there was signed by the Court an Order dismissing said action. I never received any notification from the Clerk of the Court that the Order was signed on that date." Counsel does not say he did not become aware of the order at approximately the time it was entered.


September 8, 1955, 16 months after the order was entered, counsel filed a "Motion for Relief from an Order Dismissing Cause". The District Court denied the motion. This appeal is from that denial.


The court was clearly right. In substance though not in terms appellant is claiming that her counsel's neglect to make timely attack, by appeal or otherwise, upon the order of May 5, 1954, was excusable. But (1) no excuse is shown; (2) Rule 60(b), Fed.Rules Civ.Proc. 28 U.S.C.A., requires motions for relief from a judgment or order because of "mistake, inadvertence, surprise, or excusable neglect," to be made within one year; and (3) Rule 60(b) requires all motions for relief from a judgment or order to be made within "a reasonable time".