Since Bizzell's attorney colluded with Fairco, an independent action in equity is appropriate under the principle of United States v. Throckmorton, 98 U.S. 61, 66, 25 L.Ed. 93 (1878). See Miller v. Meinhard-Commercial Corp., 462 F.2d 358, 361 (5th Cir. 1972); Norris v. Camp, 144 F.2d 1, 4 (10th Cir. 1944). Fairco was not entitled to benefit from its fraud.
[citing cases]. In ordinary civil actions governed by the Federal Rules of Civil Procedure, however, the better view is that when the time limits prescribed in the rules expire, the court loses its jurisdiction to entertain a motion, as for new trail or for a rehearing or to vacate or amend, as the case may be, and cannot thereafter entertain such a motion and thereby start the appeal time running anew. Safeway Stores, Inc., v. Coe, 1943, [78 U.S.App.D.C. 19] 136 F.2d 771 [148 A.L.R. 782]; Jusino v. Morales Tio, 1 Cir., 1944, 139 F.2d 946; Nealon v. Hill, 9 Cir., 1945, 149 F.2d 883; Norris v. Camp, 10 Cir., 1944, 144 F.2d 1."
Instead of being filed in ten days after March 28th, as required by the rules, it was filed fourteen days thereafter. Fine v. Paramount Pictures, Inc., 7 Cir., 181 F.2d 300; Safeway Stores, Inc., v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782; Jusino v. Morales Tio, 1 Cir., 139 F.2d 946; Nealon v. Hill, 9 Cir., 149 F.2d 883; Norris v. Camp, 10 Cir., 144 F.2d 1. Federal Rules of Civil Procedure, amended Rule 73(a), 28 U.S.C.A., provides that the motions enumerated therein must be made timely if they are to toll the running of the time for appeal. Safeway Stores v. Coe, 78 U.S.App.D.C. 19, 136 F.2d 771, 148 A.L.R. 782; Nealon v. Hill, 9 Cir., 149 F.2d 883; certiorari denied 326 U.S. 753, 66 S.Ct. 91, 90 L.Ed. 451; Cromelin v. Markwalter, 5 Cir., 181 F.2d 948.
Rule 60(b) authorizes the court to relieve a party from a judgment, order or proceedings taken against him through "mistake, inadvertence, surprise, or excusable neglect," providing the motion is made within a reasonable time, and within six months after the judgment was taken. Of course, it is patent that since upon the face of the record the motion was not made until more than six months after the rendition of the judgment, the court is not authorized to grant relief based upon any grounds provided in the rule. See Norris v. Camp, 10 Cir., 144 F.2d 1; Wallace v. United States, 2 Cir., 142 F.2d 240. But, as the trial court recognized, the rule contains a "saving provision," the manifest purpose of which is to preserve intact and unimpaired the inherent power of the courts to entertain remedial actions for relief against judgments traditionally recognized at common law, such as writs of coram nobis, actions in the nature of bills of review and actions for a writ of audita querela.
The burden is on the Police Property Clerk to rebut that presumption. United States v. Leuci, 160 F. Supp. 715 (E.D.N Y 1958); Norris v. Camp, 144 F.2d 1 (10th Cir. 1944). The Police Property Clerk introduced no evidence during the trial which rebutted the presumption.
In Amberg v. Philbrick, 33 Ill. App. 200, an action of trover for chattels belonging to the plaintiff of which the defendant had such possession as resulted from putting a man in charge of the premises in which the plaintiff had placed them, the court, describing the defendant as an involuntary, gratuitous bailee, held that he was not liable for the refusal of the servant to deliver the chattels, when he had not been informed that application had been made therefor, and had given no orders in regard thereto. That Pridco was a voluntary, gratuitous bailee, see also Norris v. Camp, 10 Cir., 144 F.2d 1, 3 and 4; Richards v. Fulton, 6 Cir., 75 F.2d 853, 854; Mellon National Bank v. Citizens Bank Trust Co., 8 Cir., 88 F.2d 128, 132. It is generally held that any unauthorized attempt on the part of a bailee by Sale, lease, pledge or otherwise, to transfer the title or possession of the subject matter of the bailment constitutes a conversion thereof.
The sole support for the plaintiff's contention that Leigh was the owner of the money found in the bag is that he was in possession of it. This creates a presumption of ownership. In Norris v. Camp, 10 Cir., 144 F.2d 1, 3, the Court said: "Proof of the possession of personal property is prima facie evidence of title. It raises a presumption of ownership which may be rebutted or overcome by evidence of ownership in another."
United States v. Backofen, 3 Cir., 176 F.2d 263; Fraser v. Doing, 76 U.S.App.D.C. 111, 130 F.2d 617; Wallace v. United States, 2 Cir., 142 F.2d 240, certiorari denied, 323 U.S. 712, 65 S.Ct. 37, 89 L.Ed. 573. Norris v. Camp, 10 Cir., 144 F.2d 1; Wallace v. United States, supra; United States v. Backofen, supra; Oliver v. City of Shattuck ex rel. Versluis, 10 Cir., 157 F.2d 150; 3 Fed. Practice and Procedure, Barron and Holtzoff, § 1331. We are in agreement with the trial court for another reason.
Assuming that the allegation is sufficiently definite on this score, it is conceded that the defendant became a gratuitous bailee of the brief case. It is generally recognized that the owner of premises where personal property is mislaid by an invitee has a right to possession as against everyone except the true owner. Norris v. Camp, 10 Cir., 144 F.2d 1. When he takes possession, he becomes a gratuitous bailee by operation of law, with a duty to use ordinary care to return it to the owner.
le value, and the manner of their concealment, indicate that the person who concealed them did so for purposes of security, and with the intention of reclaiming them. They were, therefore, to be classified not as lost, but as misplaced or forgotten property (Anno., 9 A.L.R. 1388, 1390), and the defendant, as occupier of the premises where they were found, had the right and duty to take them into his possession and to hold them as a gratuitous bailee for the true owner. 34 Am. Jur., Lost Property, section 7; McAvoy v. Medina, 93 Mass. (11 Allen) 548, 549, 87 Am. Dec. 733; Kincaid v. Eaton, 98 Mass. 139, 141, 93 Am. Dec. 142; Sovern v. Yoran, 16 Or. 269, 274, 20 P. 100, 8 Am. St. Rep. 293; Heddle v. Bank of Hamilton, 17 B.C. 306, 6 B.R.C. 256, 259; Foulke v. N.Y. Consolidated R. Co., supra ( 228 N.Y. 269, 127 N.E. 237, 9 A.L.R. 1384, 1386, 1387); Silcott v. Louisville Trust Co., 205 Ky. 234, 265 S.W. 612, 613, 43 A.L.R. 28; State ex rel. v. Buzard, 235 Mo. App. 636, 144 S.W.2d 847, 849; Norris v. Camp, (C.C.A. 10) 144 F.2d 1, 3; 34 Am. Jur., Lost Property, section 6. The decisive feature of the present case is the fact that plaintiff was an employee or servant of the owner or occupant of the premises, and that, in discovering the bills and turning them over to her employer, she was simply performing the duties of her employment.