Page:Rohauer v. Friedman.pdf/5

 The defendant devoted the greater share of his arguments on appeal, however, to one other contention which should be mentioned. For the first time in the course of this litigation defendant questions the genuineness of the March, 1960 assignment from Metro-Goldwyn-Mayer Inc. to the plaintiff. Defendant now asserts that the date of the assignment was altered to read March 1, 1960, when in fact the instrument was originally executed and dated March 16, 1960. This alteration, defendant contends, should be investigated to determine whether or not it constitutes a fraud on the District Court.

While it is true in certain cases that an appellate court has the power to deal with judgments shown to have been obtained by fraud, the investigation sought here is not a matter properly raised, in the first instance, before this court.

We reach this conclusion for two reasons. The first is the fact that the defendant failed to assert this objection during the trial court proceedings. Quite to the contrary, he entered into a stipulation in the pre-trial conference which stated that the instrument now challenged was genuine and admissible into evidence without objection. Thus there is no adverse ruling by the District Court, relating to the challenged document, which the defendant can urge this court to review or reverse as erroneous.

The second reason is that Federal Rule of Civil Procedure 60(b), 28 U.S.C.A., sets forth the proper method for seeking relief from a judgment alleged to have been obtained by fraud. Under that Rule, relief from a judgment on this ground is to be sought either by a motion in the trial court or by an independent action in equity. In his brief defendant states that he discovered the alleged alteration after the judgment but prior to the time of perfecting this appeal. Thus, although aware of the facts now asserted on appeal, defendant failed to proceed in accordance with Rule 60(b). An appeal to this court cannot be used as a substitute for the timely procedure set forth by Rule 60(b). We conclude therefore, that the request for an investigation is not a matter properly before this court, and we decline to consider the point sought to be raised by it.

The judgment of the District Court is affirmed.