Gilmore v. Hinman, 191 F.2d 652 (D.C. Cir. 1951)

Appellees brought a civil action to set aside a conveyance of real estate. Appellant filed a cross-complaint for services rendered and for sums expended upon the property. After trial before the court without a jury, the judge made findings of fact and conclusions of law and referred the matter to the Auditor of the court for a report stating the account between the parties. The Auditor held hearings and made a report, to which all parties excepted. The court heard the exceptions, modified the report, and then ratified and confirmed it as modified. Final judgment was entered May 23, 1949. An appeal was noted but not perfected, and so was dismissed.

On October 11, 1950, appellant filed in the District Court a motion to revoke the reference to the Auditor and set aside the judgment. The motion was denied, and appellant appealed on the ground that the trial court lacked authority to make the reference to the Auditor.

We think the action of the trial court in making the reference was proper, and, moreover, the motion to vacate the judgment was filed too late. Sixteen months is not "a reasonable time" under these circumstances. Rule 60(b), Fed. R. Civ. P., 28 U.S.C.A. None of the reasons specified in the Rule are present. No other reason justifying relief from the operation of the judgment appears, and a motion of this sort cannot be used as a substitute for an appeal.

The order of the District Court is affirmed.