Stanwood A. Demers v. Edwin C. Brown

343 F.2d 427, 1965 U.S. App. LEXIS 5936

• Court: Court of Appeals for the First Circuit
• Decided: April 9, 1965
• Docket: 6456_1
• Status: Published

Opinion

PER CURIAM.

This case, in which plaintiff sought to enjoin certain action by the Rhode Island State Board of Education, was dismissed on defendants’ motion on the ground that the complaint stated no cause of action. Final judgment was entered October 13, 1964. Having failed to appeal from that judgment, in December the plaintiff filed a motion to vacate. Concededly he had had more than 30 days’ notice of the judgment. When the motion to vacate came on for hearing the court stated that it was without power to grant it. This was so since there were no new reasons to set aside the judgment. F.R.Civ.P. 60(b). From an order denying the motion, plaintiff appeals.

It must be perfectly apparent that plaintiff is seeking to appeal from the original judgment by indirection after the time has expired. What he cannot do directly he cannot do indirectly. Perrin v. Aluminum Co. of America, 9 Cir. 1952, 197 F.2d 254.

Plaintiff filed an additional motion requesting a hearing by a three-judge court of his original complaint. The district court expressly stated that it was not passing on this motion, and in fact, no order appears to have been made. If it could be assumed that the district court also denied this so-called alternate motion, and that the plaintiff took a valid appeal therefrom, nevertheless there could be no merit to the appeal because this motion, again, specifically sought to open a complaint that had been finally disposed of.

Affirmed.