Opinion
No. 9649.
December 21, 1933.
Suit by S. Mayner Wallace against Ehrhardt W. Franz. On plaintiff's motion for leave to file a motion for leave to file a bill of review in the District Court.
Motion denied.
See, also, (C.C.A.) 66 F.2d 457, and 54 S. Ct. 208, 78 L. Ed. ___.
Decree was entered in the original suit fixing the plaintiff's fee as attorney and establishing it as a lien upon certain property of the defendant for services rendered by the plaintiff in recovering for defendant remainder interest in 28,250 shares of stock in the Burroughs Adding Machine Company. Decree allowing the attorney a $26,000 fee was affirmed by the Circuit Court of Appeals, 66 F.2d 457.
The plaintiff asserts as ground for the allowance of the present motion that, whereas the market value of the stock at the time of the hearing in the District Court was only $201,281, its value is now $444,937.50, as shown by quotations on the New York Stock Exchange, and claims that the rise in market value of the stock subsequent to the hearing amounts to newly discovered evidence and new matter. The second ground for the motion is that, since the hearing in the District Court, the Circuit Court of Appeals in another case, 62 F.2d 150, adjudicated the interest of the Franz heirs, including defendant, in such a way that they would take under 1898 will of their father, rather than under 1930 will of their mother, and thus save large sums in inheritance and estate taxes, commissions, and probate expenses, and that plaintiff had conceived, initiated, and carried through the whole of the main litigation.
Lon O. Hocker, of St. Louis, Mo. (James C. Jones, Frank H. Sullivan, Frank Y. Gladney, and William O. Reeder, all of St. Louis, Mo., of counsel), for plaintiff.
Before STONE, GARDNER, and WOODROUGH, Circuit Judges.
The motion for leave to file a motion for leave to file a bill of review in the District Court (including that motion), presented and argued to this court, was based upon two grounds of alleged newly discovered evidence and new matter. The facts relied upon as to each ground are facts sufficiently within the judicial notice and the records of the court to enable the court to exercise the discretion which the court is called upon to exercise in ruling upon the motion.
Careful consideration of the motion and the argument has convinced that no sufficient showing of newly discovered evidence or new matter is disclosed to sustain the motion herein. We are not persuaded that either the fluctuation of the stock of the Burroughs Adding Machine Company of Michigan, as reflected by the quotations upon the New York Stock Exchange, or the course of litigation in the case of Johanna F. Fiske v. State of Missouri, 62 F.2d 150, this court, presents new matter or newly discovered evidence of the kind that is required to justify the very rare and extraordinary remedy by bill of review.
Therefore, the motion is denied.
STONE, Circuit Judge, dissents.