199 F.2d 709
United States Court of Appeals Second Circuit.
Argued October 17, 1952.
Decided November 3, 1952.
Morton Frederick, New York City, for defendant-appellant.
William A. Butler, Brooklyn, N. Y., for plaintiff-appellee; Vine H. Smith, Brooklyn, N. Y., of counsel.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
We have already held the service of summons in this suit sufficient, Butler v. Ungerleider, 2 Cir., 187 F.2d 238, and have heretofore denied a motion to dismiss this appeal. It is from an order, 101 F.Supp. 379, staying all proceedings to enforce the judgment entered against the appellee in the prior suit until this action has been decided.
The denials of the motions for a stay in the suit in which the judgment was entered were no bar to the granting of this motion; nor was the denial of a similar motion in this suit, both by the court below and by us, before the sufficiency of the service of summons was upheld in our decision above cited. O'Brien v. O'Brien, 362 Pa. 66, 66 A.2d 309, 10 A.L.R.2d 714.
The District Court had inherent power in the exercise of a sound discretion to maintain the status quo until this appellee could have an opportunity to make good upon trial the allegations of his complaint and we find no abuse of that discretion. Nothing in Rule 60(b), F.R.C.P. 28 U.S.C.A. makes this suit untimely.