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February 27, 1963

FRANCIS I. du PONT & CO., a partnership composed of Edmond du Pont et al., Plaintiff in Interpleader,
Al B. SHEEN and John F. Connelly, Defendants or Claimants

The opinion of the court was delivered by: KRAFT

This was an action in interpleader. 28 U.S.C. §§ 1335, 1397, 2361. Pursuant to stipulation, we entered an order distributing the disputed fund and dismissing the action with prejudice. Plaintiff, relying on F.R.Civ.P. 60(b)(1), now moves that a permanent injunction be issued under 28 U.S.C. § 2361 to enforce the order of dismissal.

The complaint in interpleader alleged that plaintiff stock brokers held $ 101,024.45, proceeds of the sale of stock, in a margin account maintained with plaintiff by defendant Sheen; that plaintiff had been advised of an adverse claim to the fund by defendant Connelly; that plaintiff claimed no beneficial interest in the fund, but was a mere stakeholder, and had paid the fund into the registry of this Court to abide the judgment of the Court.

 On September 26, 1961, we entered a preliminary injunction, in accordance with the provisions of 28 U.S.C. § 2361.

 Connelly filed an answer admitting the allegations of the complaint, and setting forth his claim to the fund. Sheen filed a motion to dismiss the complaint alleging, inter alia, that the suit 'constitutes on its face a mere pretense of adverse claims to a fund to obtain adjudication of controversies other than entitlement to that fund.'

 Thereafter, pursuant to the written stipulation of all parties and their counsel we ordered payment of $ 30,077.91 from the fund to Broad Street Trust Company of Philadelphia, in discharge of a promissory note which Sheen had given that bank. No question is raised concerning this payment.

 Before argument could be had on Sheen's motion to dismiss, all parties and their respective counsel signed and submitted to this Court a formal written stipulation providing for distribution of the balance of the fund as follows: to defendant Sheen and his attorney $ 50,000; to Bishop Fulton J. Sheen, Director, etc., the then balance of the fund, some $ 20,000. It was further expressly agreed that 'this stipulation shall unconditionally and irrevocably bind all Parties hereto upon execution,' and that 'this cause be dismissed with prejudice.' On December 19, 1961, we entered an order in exact conformity with the aforesaid stipulation.

 On October 2, 1962, following other proceedings not here material, plaintiff filed the present motion for a permanent injunction 'to enforce the Order of Dismissal of the interpleader action with prejudice' theretofore entered.

 In support of its motion, plaintiff filed an affidavit, which, after reciting the facts heretofore stated, alleged that notwithstanding the fact that all parties and their respective attorneys were unconditionally and irrevocably bound by the stipulation, which also provided that the interpleader action be dismissed with prejudice, the usual permanent injunction provided for in 28 U.S.C. § 2361 was not included in the order submitted to and signed by this Court; that the omission of the permanent injunction from the order was an oversight and inadvertence which was attempted to be cured by the interchange of general releases after the entry of the order; that defendant Sheen refused and still refuses to execute and deliver a general release to plaintiff. The affidavit further stated that on or about August 30, 1962, defendant Sheen commenced an action in the Circuit Court of Cook County, Illinois, by filing a complaint Against plaintiff claiming damages for the $ 20,000, which was paid, as stipulated in this action to Bishop Fulton J. Sheen, Director, etc., as the nominee of Connelly, and for attorney's fees incurred in this action in the sum of $ 12,500; that the alleged basis of the Illinois action is the same purported infirmity that was urged upon this Court by Sheen before his execution of the stipulation, i.e., that Connelly had no recognizable adverse claim of right to the fund; that the entry of a decree permanently enjoining Sheen from further proceedings in his Illinois suit, and enjoining the institution of any other suit by either defendant-claimant upon the controversy that was finally determined in this Court, is necessary to prevent unnecessary expense, undue hardship and, perhaps, even multiple liability, and is fully warranted under Rule 60(b)(1).

 Upon the filing of plaintiff's motion, we entered an order to show cause, and enjoined both defendants, pending hearing and determination of the motion, from instituting or proceeding with any action against the plaintiff with respect to the matter in controversy.

 Thereafter, defendant Sheen filed a 'response' to plaintiff's motion for a permanent injunction; and a motion to dismiss plaintiff's motion for a permanent injunction, and to dissolve the temporary restraining order.

 Counsel have filed an agreed statement of facts to afford the basis for our determination of the issues.

 The question before us, as we view it, is a narrow one. We consider neither the merits, the good faith, nor the ethics of the Illinois suit. Our sole inquiry is whether the plaintiff has presented to us a case for relief under F.R.C.P. 60(b)(1):

 'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * *.'

 We find no support for plaintiff's averment that the omission of the permanent injunction from the order was 'an oversight and inadvertence'. To the contrary, the order was in exact accord with the stipulation signed by all the parties and respective counsel. The stipulation contained no provision for a permanent injunction or a discharge of the plaintiff from ...

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