Harper Bros. v. Klaw

272 F. 894, 1921 U.S. App. LEXIS 1706

• Court: Court of Appeals for the Second Circuit
• Decided: January 26, 1921
• Status: Published

Opinion

PER CURIAM.

The motion resulting in the order sought to be resettled had two parts: (1) That plaintiffs have leave to file in the District Court a bill of review; or (2) that plaintiffs have leave to apply to the District Court for leave there to file such bill of review.

The arguments made on this motion to resettle lead us to state the reasons for the order of January 5th, and we do this to aid the District Court in any further proceeding that may be had herein.

[1,2] The first branch of the motion was denied, because it is not the concern of this court whether a bill of review be filed or not; it cannot be filed with us, and, if it be filed in the lower court, upon the due request of that court to us for the return of the record, our powers will he confined to those arising upon an appeal duly taken.

[3] We denied the second branch of the motion, because no permission or leave from us is necessary to enable these plaintiffs or any other party to make application or petition to the District Court; they have that right without our leave.

[ 4] We added to the order a statement that it should be without prejudice to an application for relief in the District Court for the following reasons: So far as we are informed, plaintiffs desire to file a bill of review; their motion papers disclose no other intent. To accomplish this in the lower court it is necessary for that court to request this court to send back the record on the appeal now pending herein, to the end that the case may again be before the District Court.

We express no opinion as to whether a bill of review is the proper or necessary method of proceeding, or whether any other application in, the District Court would or would not serve plaintiffs’ purpose. It is enough for present purposes that plaintiffs may make their application in the District Court, and if the District Court applies for the return of the record we shall consider that application when it is before us.

Meanwhile proceedings on the appeal are further stayed for 30 days from the date hereof, and it is not necessary to change or resettle the order already made. Therefore the motion to resettle is denied.