Opinion
Nos. 8805, 10948.
Argued June 6, 1955.
Decided June 14, 1955.
Harry J. Alker, Jr., Philadelphia, Pa., pro se, A.D. Bruce, Francis E. Walter, for defendant-petitioner.
Richard C. Bull, Thomas Raeburn White, Howard H. Rapp, Thomas B.K. Ringe, Philadelphia, Pa., for Butcher Sherrerd and Fidelity-Philadelphia Trust Co., Trustee.
Before MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
The judgment of the district court in this case was affirmed by this court on November 7, 1945, 151 F.2d 907. Since that time defendant Alker has made repeated efforts in the district court, in this court and in the Supreme Court to obtain relief from that judgment by way of a new trial. This court is now again presented by Alker with a motion for an order granting leave to the district court to reconsider his motion for a new trial. We are constrained at this time to grant the leave requested even though we have denied similar applications in the past. We do so because we have now reached the conclusion that Alker should have an opportunity to convince the district court, if he can, that he is entitled under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C. to relief from the judgment entered against him by that court. In reaching this conclusion we make it clear that we intimate no opinion upon the merits of Alker's motion for a new trial or even whether the district court is empowered to grant it under Rule 60(b). We merely desire to open the way for the district court to decide those questions, which it will do in the exercise of its own responsibility and discretion. We will, of course, also vacate the writs of prohibition and mandamus heretofore directed to the district court at our No. 10,948, 206 F.2d 259.
It will be so ordered.