Larkin v. Platt Contracting Co. Appeals
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UNITED STATES of America, f/u/b/o Henry J. LARKIN, d/b/a
Larkin Company, Plaintiff, Appellant,
v.
PLATT CONTRACTING CO., Inc., et al., Defendants,
Appellees.
Henry J. LARKIN, d/b/a Larkin Company, Defendant,
Appellant,
v.
CONTINENTAL CASUALTY COMPANY et al., Appellees.
Nos. 6140, 6165.
United States Court of Appeals First Circuit.
Heard Oct. 8, 1963.
Decided Nov. 12, 1963.
Henry J. Larkin on brief in Nos. 6140 and 6165, pro se.
Lee H. Kozol, Boston, Mass., with whom Frank L. Kozol and Friedman,
Atherton, Sisson & Kozol, Boston, Mass., were on brief, for Platt
Contracting Co., Inc., appellee, in No. 6140.
John W. Blakeney and Blakeney & Blakeney, Boston, Mass., were on
brief for Continental Cas. Co., and others, appellees, in No. 6140.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH,
Circuit Judges.
WOODBURY, Chief Judge.
These are appeals from two orders of the United States District Court for the
District of Massachusetts, one dated March 25, 1963, and the other dated May
21, 1963.
On December 13, 1961, the appellant Larkin recovered a judgment in the court
below under the Miller Act, 40 U.S.C. 270a-270d against Platt Contracting Co.,
Inc., a principal contractor, and its sureties, Continental Casualty Company and
American Employers Insurance Company. The judgment was for the amount of
$7,344.67 with interest and costs out of which it was ordered that an attorney's
lien of $2,039.14 be paid to one Foley for services rendered to Larkin in the
suit. This court affirmed the judgment in July, 1962. United States for the Use
and Benefit of Larkin v. Platt Contracting Company, Inc., et al., 1st Cir., 306
F.2d 724, cert. denied, 371 U.S. 924, 83 S.Ct. 293, 9 L.Ed.2d 232 (1962).
3
The district court issued an execution on the judgment on December 27, 1962,
but on January 25, 1963, it revoked this execution. Then, on February 14, 1963,
the defendants filed a motion for stay of execution supported by an affidavit
alleging the existence of an injunction issued by the Massachusetts Superior
Court in a 'Bill to Reach and Apply' brought against them and Larkin by one
Krulee which restrained them from making any payment to Larkin on his
judgment of December 13, 1961. The affidavit also alleged that the defendants
were being subjected to demands and legal proceedings by one Phillips for
satisfaction of a judgment held by him against Larkin in the sum of $559.08.
On March 25, 1963, the court below allowed the defendants' motion for a stay
of execution, denied Larkin's motion to strike the defendants' motion for stay
and his motion to issue execution, and ordered that Larkin and his attorneys
'including but not limited' to one Sharon of New York, 'and the United States
Marshal of any Federal District Court and his Deputies and each of them be
stayed, restrained and enjoined from instituting or maintaining any proceedings
directly or indirectly to enforce or collect the Judgment of this Court dated
December 13, 1961, and more particularly from compelling or attempting to
compel Chase Manhattan Bank, New York City, New York, to pay over any
monies to the plaintiff, Larkin, or instituting or maintaining any process or
procedure in connection therewith.' In addition the court below further ordered
the 'aforementioned persons and parties' forthwith 'to surrender and deliver up'
to the clerk of the court 'any and all executions in their possession issued upon
the aforementioned Judgment and to surrender and return all other executions
issued by the Clerk of any other Federal District Court in any supplemental
proceeding or fieri facias seeking satisfaction of said Judgment.' Larkin's appeal
from this order bears our docket number 6140.
Subsequently, on May 7, 1963, Continental Casualty Company, deposited the
amount of the judgment of December 13, 1961, into the registry of the Court
below and on its own behalf and in behalf of Platt Contracting Company, Inc.,
and American Employers Insurance Company, filed a complaint in the court
below for interpleader under Title 28 U.S.C. 1335 against Larkin, Foley and
Krulee, who it was alleged had recovered a final judgment in the gross amount
of $5,681.52 in her 'Bill to Reach and Apply' in the Massachusetts Superior
Court, and Phillips, who was alleged to be a judgment creditor of Larkin in
New York, whose proceedings against Continental were still pending.
Continental also moved for a preliminary injunction restraining Larkin, Foley,
Krulee and Phillips, from prosecuting or maintaining any action against any of
the plaintiffs in interpleader concerning Larkin's judgment against them of
December 13, 1961. The court below granted Continental's motion for
preliminary injunction. Larkin's appeal therefrom bears our docket number
6165.
6
The jurisdiction of this court over both of these appeals, if it exists, must be
found in Title 28 U.S.C. 1292(a)(1) for clearly neither of the orders is a final
decision within the meaning of Title 28 U.S.C. 1291. We think the order of
May 21, 1963, is an interlocutory order granting an injunction within the
meaning of 1292(a)(1), supra, for it is directory in form and effect, and
injunctive relief is specifically authorized as supplementary process in actions
of interpleader by Title 28 U.S.C. 2361.
The order of March 25, 1963, does not so clearly fall within Title 28 U.S.C.
1292(a)(1). Yet the substance and effect of the two orders is identical except
for the enlargement of parties in the later order. We find that the similarity of
the order of March 25, 1963, to that of May 21, 1963, requires that we hold that
it also constitutes an interlocutory order granting an injunction under 1292(a)
(1). Holding that we have jurisdiction, we affirm.
The district courts have discretionary power under Rule 62(b) Fed.R.Civ.P. to
'stay the execution of or any proceedings to enforce a judgment pending the
disposition' of motions for relief from a judgment made pursuant to Rule 60,
and Rule 60(b) empowers the district courts to afford relief from final
judgments for five specific reasons, none of which are present here, '* * * or
(6) any other reason justifying relief from the operation of the judgment.' No
abuse of discretion appears. On the contrary, the facts of record afford strong
basis for relief from the operation of Larkin's judgment by the stay of execution
granted by the court's order of March 25, 1963.
The injunctive relief afforded by the court's order of May 21, 1963, is, as noted
above, authorized by 2361, supra. On the facts such relief is clearly indicated.
10
Judgments will be entered affirming the orders of the District Court.
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