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Foman v. Davis

Supreme Court of the United States

November 14, 1962, Argued ; December 3, 1962, Decided

No. 41


 [*179]   [***224]   [**228]  MR. JUSTICE GOLDBERG delivered the opinion of the Court.

Petitioner filed a complaint in the District Court alleging that, in exchange for petitioner's promise to care for and support her mother, petitioner's father had agreed not to make a will, thereby assuring petitioner of an intestate share of the father's estate; it was further alleged that petitioner had fully performed her obligations under the oral agreement, but that contrary thereto the father had devised his property to respondent, his second wife and executrix. Petitioner sought recovery of what would have been her intestate share of the father's estate. Respondent moved to dismiss the complaint on the ground that the oral agreement was unenforceable under the applicable state statute of frauds. Accepting respondent's contention, the District Court entered judgment on December 19, 1960, dismissing petitioner's complaint for failure to state a claim upon which relief might be granted. On December 20, 1960, petitioner [****4]  filed motions to vacate the judgment and to amend the complaint to assert a right of recovery in quantum meruit for performance of the obligations which were the consideration for the assertedly unenforceable oral contract. On January 17, 1961, petitioner filed a notice of appeal from the judgment of December 19, 1960. On January 23, 1961, the District Court denied petitioner's motions to vacate the judgment and to amend the complaint. On January 26,  [**229]  1961, petitioner filed a notice of appeal from denial of the motions.

On appeal, the parties briefed and argued the merits of dismissal of the complaint and denial of petitioner's  [*180]  motions by the District Court. Notwithstanding, the Court of Appeals of its own accord dismissed the appeal insofar as taken from the District Court judgment of December 19, 1960, and affirmed the orders of the District Court entered January 23, 1961. 292 F.2d 85. This Court granted certiorari. 368 U.S. 951.

The Court of Appeals reasoned that in the absence of a specific designation of the provision of the Federal Rules of Civil Procedure under which the December 20, 1960, motion to vacate was filed,  [****5]  the motion would be treated as filed pursuant to Rule 59 (e), rather than under Rule 60 (b); 1 [****6]  since, under Rule 73  [***225]  (a), 2 a motion under Rule 59 suspends the running of time within which an appeal may be perfected, the first notice of appeal was treated as premature in view of the then pending motion to vacate and of no effect. The Court of Appeals held the second notice of appeal, filed January 26, 1961, ineffective to review the December 19, 1960, judgment dismissing the complaint because the notice failed to specify that the appeal was being taken from that judgment as well as  [*181]  from the orders denying the motions. Considering the second notice of appeal, therefore, only as an appeal from the denial by the District Court of the motions to vacate and amend, the Court of Appeals held that there was nothing in the record to show the circumstances which were before the District Court for consideration in ruling on those motions; consequently it regarded itself as precluded from finding any abuse of discretion in the refusal of the court below to allow amendment.

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371 U.S. 178 *; 83 S. Ct. 227 **; 9 L. Ed. 2d 222 ***; 1962 U.S. LEXIS 65 ****; 6 Fed. R. Serv. 2d (Callaghan) 1234



Disposition:  292 F.2d 85, reversed.


notice of appeal, amend, motion to vacate, motions, merits

Civil Procedure, Judgments, Relief From Judgments, Altering & Amending Judgments, Excusable Mistakes & Neglect, General Overview, Excusable Neglect, Inadvertence, Mistake, Surprise, Pleading & Practice, Motion Practice, Appeals, Reviewability of Lower Court Decisions, Timing of Appeals, Pleadings, Amendment of Pleadings, Rule Application & Interpretation, Attorneys, Vacation of Judgments, Standards of Review, Abuse of Discretion, Leave of Court, Judicial Officers, Judges, Discretionary Powers