concluding that the only relief under Rule 60(b) is setting aside the judgment
How later courts described this case
- concluding that the only relief under Rule 60(b) is setting aside the judgment
- “The relief provided by F.R.Civ.P. 60(b), of course, is merely to set aside a judgment.” An order to account for revenues, income, profits and proceeds “was not within the permissible scope of F.R.Civ.P. 60(b).”
Written by the judges who cited it.
The opinion
HUTCHESON, Chief Judge,
dissenting.
I am of the clear opinion: that the evidence fully and adequately supports the finding and conclusion of the district judge that the defendant Haynen “at the times when a member of the Regional Review Board he participated in the sale of the Bluebonnet property, had a direct financial interest therein as the undisclosed joint venturer with, or partner of, Bishop as a buyer”; that the purchase of the property under those circumstances was in violation of Sec. 489(b) Title 40; 1 and that it subjected the defendants *667 to the obligations imposed by said section. I am, therefore, unable to agree with the result reached by the majority that the order appealed from must be reversed and remanded with directions to enter judgment against the government and in favor of Bishop and Haynen.
I share, however, the view of my colleagues that the evidence does not support the extravagant claims put forward in the brief of the United States, that in the purchase of the property in question, the appellants intended to and did swindle, cheat and defraud the United States out of its fair value. To the extent, therefore, that the findings and conclusions and the judgment went further than to find and conclude that, because and entirely because of Haynen’s secret ownership, there was a violation of Subd. (b) Sec. 489, supra, and accountability therefor, and adjudged that the defendants are trustees ex maleficio of the property in suit and “are obliged to account for all of the rents, issues and profits derived from the sale, use, occupation and rental of all of the realty and personalty and shall pay to the plaintiff the total rents, issues and profits derived from the property since September 30, 1949, and interest thereon”, the findings and conclusions and the judgment went beyond the facts and the law.
While, therefore, I must dissent from the opinion of the majority and the judgment ordered by them, I am of the view that the judgment appealed from should be modified by striking from it the provisions above quoted and, as modified, should be affirmed.
. Ҥ 489. Civil remedies and penalties; jurisdiction and venue; additional penalties,
“(a) * * *
“(b) Every person who shall use or engage in, or cause to be used or engaged in, or enter into an agreement, combination, or conspiracy to use or engage in or to cause to be used to engage in, any fraudulent trick, scheme, or device, for the purpose of securing or obtaining, or aiding to secure or obtain, for any person any payment, property, or other benefits from the United States or any Eederal agency in connection with the procurement, transfer, or disposition of property under this chapter, chapter 11B of Title 5, chapter 4 of Title 41, and chapter 11 of Title 44 — -
“(1) * * *
«(2) * * *
“(3) shall, if the United States shall so elect, restore to the United States the money or property thus secured and obtained and the United States shall retain as liquidated damages any property, *667 money, or other consideration given to the United States or any Federal agency for such money or property, as the case may be.”