Mary Schaaff Greear v. James N. Greear, Jr., and Margaret Sperry Greear

Appellant in these consolidated appeals has moved this court for an order remanding the consolidated record to the district court. The purpose of such remand is so that court may reconsider certain motions, the orders on which are the subject of these appeals, in the light of depositions which through asserted inadvertence were not of record before the district court when such orders were entered.

We regard the motion made in this court as in substance one to remand so that the district court may entertain a motion made under rule 60(b)(1), Federal Rules of Civil Procedure, 28 U.S.C.A., to relieve appellant from the orders under review on the ground of mistake or inadvertence or excusable neglect in completing the record before the district court.

In such circumstances the proper procedure is for appellant to file its rule 60(b) motion in the district court. If that court indicates that it will grant the motion, appellant should then make a motion in this court for a remand of the case in order that the district court may grant such relief, following which a supplemental record showing such proceedings may be filed in this court. Appellant may appeal from an order of the…