The motions to vacate must be considered, if at all, pursuant to Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. That rule gives the court power "to entertain an action to relieve a party from a judgment, order, or proceeding."
Under the former procedure the general rule was that the court had no power to set aside its final orders and decrees after the term at which they were rendered. However, Rule 6(c) of the Rules of Civil Procedure provides that "the expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it."
The ancillary proceeding by bill of review was resorted to in equity to open up and, if proper, vacate or modify orders, judgments or decrees. That right is preserved by the saving clause of Rule 60(b), above quoted, and its exercise will be governed by the procedure as it formerly obtained in proceedings in equity.
The court will treat these motions as bills of review because the relief sought is that commonly sought by such a bill.
The intervener, William B. O'Connell, is estopped from seeking a review because he has accepted the benefits of the decree by taking advantage of the right given him by the partial and conditional mandate of the United States Court of Appeals and accepting a proportionate interest in the property as held by the purchasing corporation. Hill v. Phelps, 8 Cir., 101 F. 650.
It is to be noted that the motions herein were each filed without leave either of the United States Court of Appeals for the District of Columbia or this court.
After a final decree has been entered in accordance with the mandate of the appellate court, a bill of review can be entertained only with its consent. Obear-Nester Glass Co. v. Hartford Empire Co., 8 Cir., 61 F.2d 31; Hagerott v. Adams, 8 Cir., 61 F.2d 35; Power Specialty Co. v. Connecticut Light & Power Co., D.C., 39 F.2d 493.
The rule is well stated in Obear-Nester Glass Co. v. Hartford Empire Co., supra, 61 F.2d at page 34, as follows: "Where there has been no appeal, the defeated party may, in a proper case, and within proper time, on leave of that court first had and obtained, file in the trial court a bill of review. Where, however, the decree of the trial court has been appealed from and has been disposed of by the appellate court, either by affirmance or reversal, then the trial court may not entertain a bill of review, nor permit it to be filed without leave first granted by the appellate court, because after decision by the appellate court, the decree of the lower court becomes the decree of the appellate court." See, also, Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 91, 42 S. Ct. 196, 66 L. Ed. 475; National Brake & Electric Co. v. Christensen, 254 U.S. 425, 41 S. Ct. 154, 65 L. Ed. 314; In re Potts, 166 U.S. 263, 17 S. Ct. 520, 41 L. Ed. 994.
The United States Court of Appeals for the District of Columbia had before it the record here sought to be reviewed. It dealt with the issue of fraud and its conclusion was that "the charges of fraud made against the New York bankers relative to the inception and organization of the Wardman Real Estate Properties, Inc., as a corporation and the issuance and sale of $11,000,000 of mortgage bonds secured by mortgage upon the real estate held by the corporation seem to be probably correct."
However, that court found that "it was not fraudulent or illegal for the holders of the mortgage bonds to enter into a plan of cooperation whereby they might convert their bonds into the ownership of the mortgaged property," and, with respect to the plan of reorganization, has this to say: "The plan of reorganization adopted by the bondholders does not appear in the record, but it seems to have met with all but unanimous approval of the bondholders, and inasmuch as it does not appear that any onerous conditions were imposed upon any bondholder who desired to enter into the plan of reorganization, nor that any bondholder was excluded from the organization for any reason, it would seem to follow that no imposition was practiced upon the bondholders."
The record before the Court of Appeals was not a satisfactory one. The testimony taken by the court on the objections to the confirmation of the sale was not included, because the appellants failed to submit their statement of evidence within the time required by the then existing rule and it was stricken. The memorandum of November 28, 1932 was based on this testimony.
The motions under consideration require the court to look to the evidence. A party is not at liberty to go into the evidence at large in order to establish an objection to the decree founded on the supposed mistake of the court in its own deductions from the evidence. Whiting v. Bank of United States, 13 Pet. 6, 14, 10 L. Ed. 33; Buffington v. Harvey, 95 U.S. 99, 24 L. Ed. 381; Shelton v. Van Kleeck, 106 U.S. 532, 1 S. Ct. 491, 27 L. Ed. 269; McGowan v. Elroy, 28 App.D.C. 84; Adriaans v. Reilly, 27 App.D.C. 167.
The motions must be stricken, and it is so ordered.
Counsel will submit appropriate decree.
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