STANWOOD A. DEMERS, PLAINTIFF, APPELLANT,
v.
EDWIN C. BROWN ET AL., DEFENDANTS, APPELLEES
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The court held that a motion to vacate a judgment, filed more than 30 days after notice of the judgment and without new reasons, cannot be used to extend the time to appeal the original judgment.
Plaintiff's complaint was dismissed, and final judgment was entered. After the time to appeal expired, plaintiff filed a motion to vacate the judgment…
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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.
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Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.C. Cir. 1972)
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Hoffman v. Celebrezze, 405 F.2d 833 (8th Cir. 1969)
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West v. Keve, 721 F.2d 91 (3d Cir. 1983)
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- Perrin v. Aluminum Co. of Am., 197 F.2d 254 (9th Cir. 1952)