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See same case below, 26 App. D. C. 124; Then follows: on former appeal, 25 App. D. C. 415.
“Thence the case was
continued from The facts are stated in the opinion. sitting to sitting into the April sitting, Mr. William L. Ford for plaintiff in error. 1899, when, on the 12th day of June, 1899,
Messrs. W. W. Millan, J. J. Darlington, at a calling of the docket under the general and Millan & Smith for defendant in error. order of court, said action was dismissed."
And then the entry: Mr. Justice Day delivered the opinion of “And now, at this present October sitting, the court:
1900, to wit, on the 18th day of said This is a writ of error to the court of ap- October, 1900, said dismissal is stricken off peals of the District of Columbia to reverse and the case brought forward, the same havà judgment of that court affirming a judg- ing been dismissed improvidently, action ment of the supreme court of the District having been taken within one year, but not of Columbia in favor of the defendant in discovered." error, overruling a demurrer to the defend- On November 17, 1900, there was a motion ant's second plea.
by plaintiff for judgment on the verdict of The action was brought on the law side in the jury, and on November 20, 1900, judg. the supreme court of the District of Co- ment was entered accordingly against the lumbia on December 1, 1903, to recover judg. defendant for the sum of $12,881.46 and ment against Karrick, defendant in error, costs. upon a judgment rendered in the superior Two pleas were filed to the declaration in court for the county of Suffolk, common the supreme court of the District of Cowealth of Massachusetts, on November 20, lumbia; first, the general issue nul tiel 1900. Copy of the record in the Massa- record; second, a special plea, wherein the chusetts court is made part of the record defendant set out that on June 12, 1899, the in the supreme court of the District of Co- cause against him in the Massachusetts court lumbia.
was dismissed; that under the rules of court This record shows that suit was brought that dismissal became final on the first Mon. upon certain contracts between the defend- day of July, 1899; that the cause remained ant in error and one Charles H. Wetmore, so dismissed for more than five terms or sitsince deceased, plaintiff's intestate. The de. tings of the court, and until October 18, fendant was personally served with process, 1900; that, in the meantime, on April 29, appeared, and pleaded to the declaration. 1899, defendant filed his petition in bankTrial was had to a jury, and resulted in a ruptcy in the district court of the United verdict against the defendant. Upon his States for the district of Colorado, enumermotion the verdict was set aside. There
There-ating in his schedule the debt due to said upon the plaintiff filed an amendment to his Wetmore, and was, by the said district declaration and another trial to a jury was court, on June 23, 1899, discharged from all had. Upon February 21, 1894, by another debts provable against him in bankruptcy, , verdict, special and general, a sum of $9,- including the debt sued on; that subse169.39 was found in favor of the plaintiff. quently to the discharge, as aforesaid, he
, Motion for a new trial was made by the de- made inquiry of the clerk of the court in fendant and overruled March 3, 1894, and Massachusetts as to the suit, and was inexceptions filed. On June 8, 1897, more than formed that said suit was no longer pendthree years after the proceedings just re- ing; that relying upon this statement he cited, the action was dismissed under the took no steps to suggest in that court his general order of the court upon the calling discharge in bankruptcy; that the action of of the docket. Two days thereafter, June the court in Massachusetts, restoring the 10, 1897, the order of dismissal was stricken case to the docket, was without summons, out and the case restored to the docket. citation, or notice of any kind to him, or to
On June 23, 1897, attorney for the de- anyone for him, and without his knowledge; fendant entered an order withdrawing his that the court had no jurisdiction to render appearance. On June 13, 1898, an attorney, the judgment sued upon. whose name does not appear elsewhere in Issue was joined upon the first plea, and the record, withdrew his appearance. The to the second plea a demurrer was filed, record then shows:
which was sustained by the supreme court “Thence the case was continued to the of the District of Columbia. From the order July sitting, 1898, when said exceptions, sustaining the demurrer special appeal was having been presented to the court, were taken on January 6, 1905, to the court of disallowed as not conformable to the truth, appeals for the District of Columbia, and the bill not properly and correctly stating on April 17, 1905, the judgment below was the evidence so as to fairly present the ques- reversed and the cause remanded. 25 App. tions of law raised by the defendant's ex. D. C. 415. ceptions."
On May 16, 1905, the supreme court of
the District of Columbia entered an order of the plaintiff in error, the present action overruling plaintiff's demurrer to defend is brought. ant's second plea and, the plaintiff elect- No contention is made in the brief or ing to stand on his demurrer, judgment was oral argument of counsel for plaintiff in entered for the defendant, and the plaintiff error that the question for decision in this appealed to the court of appeals of the case is changed or modified because of the District of Columbia.
fact that terms of court are abolished by On October 10, 1905, the case. was sub- statute in Massachusetts. The statutes of mitted; and, on the 12th day of the same that commonwealth (Rev. Laws, vol. 2, 1382, month, judgment below was affirmed with- $ 24) provide for "sittings” of the superior out further opinion.
court at Boston, in the county of Suffolk, Before taking up the case in detail it for civil business, on the first Tuesdays of must be regarded as settled by previous de- January, April, July, and October. The ex. cisions of this court that, where an action emplified copy of the record in this case is brought to recover upon a judgment, the shows that the case was dismissed under the jurisdiction of the court rendering the general order of the court at the April sit. judgment is open to inquiry. And the ting, 1899, on the 12th day of June, 1899. constitutional requirement to full At the October sitting, 1900, to wit, on faith and credit in each state to the October 18, 1900, the dismissal was stricken public acts, records, and judicial proceedings off for the reason stated, and on November of every other state does not require them 20, 1900, the new judgment was rendered. to be enforced if they are rendered without In Dalton-Ingersoll Co. v. Fiske, 175 Mass. jurisdiction, or otherwise wanting in due 15, 55 N. E. 468, the supreme judicial court process of law. This principle was so lately recited the previous cases, holding that asserted by a decision in this court as to terms no longer exist in the superior court, render unnecessary more than a reference to and said (p. 22, N. E. p. 471): “When we the consideration of the subject in Old had terms the practice was to enter judg. Wayne Mut. Life Asso. v. McDonough, de- ment, either on some day in the term, upon cided on January 7, 1907, of the present motion, or, of course, on the last day. term. 204 U. S. 8, 51 L. ed. 315, 27 Sur. Ct. Howe, Pr. 267. Since terms have been Rep. 236.
abolished the practice is regulated by It is also an elementary doctrine of this statutes and the rules of the courts.” In court that a judgment rendered in personam the second plea it is averred, and admitted against a defendant without jurisdiction of by the demurrer, that under the rules of his person is not only erroneous but void. court the dismissal became final on the first Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. Monday of July, 1899; that is, the first 565. And the same case holds that such Monday of the following month. judgment is not required to be enforced in We think this rule day equivalent to the another state, either by the due faith and end of a term. It is the time at which, by credit clause of the Constitution, or the act the rules of court adopted under statutory of Congress (Rev. Stat. $ 905, U. S. Comp. power, the judgment became final, unless set Stat. 1901, p. 677) passed in aid thereof.
aside for mistake within the principles to be It is apparent from the statement of facts hereinafter discussed. preceding this discussion that the precise
Pierce v. Lamper, 141 Mass. 20, 6 N. E. question to be determined is whether a 223, was a case where a suit had been discourt which has once rendered a judgment in missed upon the call of the docket under the favor of a defendant, dismissing the cause
same rule under which the case against and discharging him from further attend- Karrick, defendant in error, was dismissed. ance, may, at any time after the term, and for want of action within the year, which
order should have been followed by an entry at a subsequent term, no matter how remote from the time of rendering judgment, the clerk simply made a docket entry "dis
of judgment of dismissal, in place of which without motion or proceeding to vacate the
missed on call.” The court held, since it judgment, and without notice, set aside the
was the duty of the clerk to have entered judgment so rendered and render
the dismissal, it was to be deemed in law judgment against the defendant for the re
as actually entered and a final disposition covery of a sum of money against him.
of the case; that at a subsequent term the The general principle is that judgments court had no power to vacate it, except by cannot be disturbed after the term at which writ of review filed within one year under they are rendered, and can only be correct the statute. ed, if at all, by writ of error, or appeal, or The doctrine that a judgment is final at relieved against in equity in certain cases. the term unless set aside within the excepThere are, it is true, certain exceptions to tions for mistake seems fully recognized by the rule, within which, it is the contention / other decisions in Massachusetts. Radclytte
v. Barton, 154 Mass. 159, 28 N. E. 148, The Glamorgan, 2 Curt. C. C. 236, Fed. Cas. v where previous cases are cited in the No. 15,214; Bradford v. Patterson, 1 A. K. opinion.
Marsh, 464; Ballard v. Davis, 3 J. J. Marsh, At common law a writ of error coram 656." vobis brought before the court certain mis- In discussing the exceptions to this rule takes of fact not put in issue or passed for the correction of judgment by writ of upon,-such as the death of a party, cover- error coram vobis, or motion, now substitutture, infancy, error in process, or mistake ed for the old practice, the only one which of the clerk. This writ is no longer in use, has application here is error in the process but its objects are attained by motion. through the default of the clerk. Pickett v. Legerwood, 7 Pet. 145, 147, 8 L. We are unable to find in the present ed. 638, 639.
record any clerical mistake. The entry of As in the common-law writ of coram action during the year upon the bill of exvobis, so in the proceeding by motion, after ceptions appears to have been duly entered a party has been dismissed from the action upon the minutes of the court; the clerk by judgment he is brought again into the made no mistake about it. The court ercourt by notice of the new proceeding. roneously rendered a judgment, believing Ferris v. Douglass, 20 Wend. 626.
that no action had been taken, but this was A few of the cases from this court may not through mistake or oversight of the be noticed which support the general clerk within the meaning of the rule. The proposition that, at the end of the term at judgment intended to be entered by the which judgment was rendered, the court court was, in fact, entered,—through misloses jurisdiction of the cause. The princi- apprehension, it is true; but nothing was ple was briefly stated by Mr. Chief Justice left out which the court intended to make a Waite, speaking for the court, in Brooks v. matter of record. Burlington & S. W. R. Co. 102 U. S. 107, 26 In Hickman v. Ft. Scott, 141 U. S. 415– L. ed. 91:
418, 35 L. ed. 775, 776, 12 Sup. Ct. Rep. 9, “At the end of the term the parties are 10, there was a petition to correct by new discharged from further attendance on all findings the special findings of fact upon causes decided, and we have no power to which the court had rendered a judgment at bring them back. After that, we can do no a former term, which findings, it was more than correct any clerical errors that averred, had been omitted, some unavoidmay be found in the record of what we have ably and others accidentally; but the apdone."
plication was overruled and error was proseThe question underwent a full discussion, cuted to this court, which, speaking through Mr. Justice Miller delivering the opinion of Mr. Justice Harlan, said: “The judgment the court, in Bronson v. Schulten, 104 U. S. was the one the court intended to enter, 410, 26 L. ed. 797. On page 415, L. ed. p. and the facts found were those only which 799, he said:
the court intended to find. There is here no “But it is a rule equally well established, clerical mistake. Nothing was omitted from that after the term has ended all final judg. the record of the original action which the ments and decrees of the court pass beyond court intended to make a matter of record. its control, unless steps be taken during The case, therefore, does not come within that term, by motion or otherwise, to set the rule that a court, after the expiration of aside, modify, or correct them; and, if errors the term, may, by an order nunc pro tunc, exist, they can only be corrected by such amend the record by inserting what had proceeding by a writ of error or appeal as been omitted by the act of the clerk or of may be allowed in a court which, by law, the court. Re Wight (Wight v. Nicholson) can review the decision. So strongly has
, this principle been upheld by this court, 134 U. S. 136, 144, 33 L. ed. 865, 10 Sup. Ct. that, while realizing that there is no court Rep. 487; Fowler v. Equitable Trust Co. 141 which can review its decisions, it has in-U. S. 384, 35 L. ed. 786, 12 Sup. Ct. Rep. 1; variably refused all applications for rehear-Galloway v. McKeithen, 27 N. C. (5 Ired. L.) ing made after the adjournment of the 12, 52 Am. Dec. 153; Hyde v. Curling, 10 court for the term at which the judgment Mo. 359." was rendered. And this is placed upon the
This case from 10 Missouri was quoted ground that the case has passed beyond the with approbation also in the case of Re control of the court. Brooks v. Burlington Wight (Wight v. Nicholson) 134 U. S. 136, & S. W. R. Co. supra; St. Louis Public 145, 33 L. ed. 865, 869, 10 Sup. Ct. Rep. 487, Schools v. Walker, 9 Wall. 603, 19 L. ed. 490, as follows: "A court has power to 650; Brown v. Aspden, 14 How. 25, 14 L. order entries of proceedings had by the ed. 311; Cameron v. M’Roberts, 3 Wheat. court at a previous term to be made nuno 591, 4 L. ed. 467; Sibbald v. United States, pro tunc; but, where the court has omitted 12 Pet. 488, 9 L. ed. 1167; United States v. 'to make an order which it might or ought to have made, it cannot, at a subsequent term, as Mr. Justice Story distinctly says, from be made nunc pro tunc.”
a “misprision of the clerk,”—a recognized In the case Re Wight this court approved exception to the general doctrine of conan order of the circuit court of the United clusiveness of the judgment after the term, States putting in the record at a subsequent and there is no indication that the corterm an order which was made at a previous rection made in that case was made withterm of the court, remanding the case to out notice to the party interested. The adthe district court. "A clerical error, as its verse party was present and resisted the designation imports, is an error of a clerk order, so there was opportunity to be heard. or a subordinate officer in transcribing or The Palmyra Case has been cited a numentering an official proceeding ordered by ber of times since in the course of opinions another.” Marsh v. Nichols, S. & Co. 128 not involving the precise proposition, to U. S. 605, 615, 32 L. ed. 538, 542, 9 Sup. Ct. the effect that the court "may reinstate a Rep. 168, 171.
cause at a subsequent term, dismissed by uf another alleged exception to the gen- mistake.” Sibbald v. United States, 12 eral rule of finality of judgments, counsel Pet. 492, 9 L. ed. 1169. for plaintiff in error says, after conceding It was cited to the proposition that a the general rule that jurisdiction is lost court might correct misprision of clerks. after the lapse of the term at which judg- Bank of United States v. Moss, 6 How. 38, ment is rendered :
12 L. ed. 334. "But a well-known exception to this gen- In 21 How. 85, 16 L. ed. 32, Rice v. Mineral rule is that a judgment of dismissal nesota & N. W. R. Co., an opinion delivered based upon a mistake or inadvertence, such by Mr. Chief Justice Taney, it was held as appear in this record, can be set aside that at common law, where a case upon after the term, and that is the proposition error proceedings had been dismissed for with which this court is concerned in this want of jurisdiction, it could not be reincase. The reason is that jurisdiction is not stated at a subsequent term upon a showing lost by a dismissal by a mistake. This is that the final judgment below, for want of one of the exceptions to the general rule which the case was dismissed, had been accithat has been recognized in the decisions dentally omitted from the record as a proof this court for nearly a century.”
duction of the correct record showed. To support this contention the case of
In the case The Palmyra Case was relied The Palmyra, 12 Wheat. 1, 6 L. ed. 531, is upon in support of the motion, but the relied upon. In that case, which was one in court declined to follow it in a common-law admiralty, the court found there was no case, and limited its application to final decree in the court below, and, there-jurisdiction of an appellate court in ad
, fore, it was not appealable. The next term miralty cases, which, the Chief Justice said, of the court a corrected transcript was ad- was much wider than in a case at common duced, showing there had been a final de- law. cree which the clerk, through mistake, had In the case of Alviso v. United States, 6 failed to include in the record, and the Wall. 458, 18 L. ed. 721, a case dismissed for court permitted the filing of a new tran- want of citation at a former term, omitted script. Mr. Justice Story, delivering the to be returned from neglect of the clerk, was opinion of the court, said:
reinstated upon the authority of The “The difference between a new appeal Palmyra; but in that case Mr. Justice Nel. and a reinstatement of the old appeal after son, speaking for the court, distinctly stated a dismissal, from a misprision of the clerk, that the omission in The Palmyra Case was is not admitted by this court justly to in the error of the clerk in making out the volve any difference of right as to the stipu- transcript, and there is no reference to the lators. Every court must be presumed to general authority of the court to reinstate exercise those powers belonging to it which a case dismissed by mistake, regardless of are necessary for the promotion of public the character of the omission or error. justice; and we do not doubt that this court The Palmyra, like every other case, must possesses the power to reinstate any cause be read in the light of the point decided in dismissed by mistake. The reinstatement of the case, and in considering the language the cause was founded, in the opinion of this of Mr. Justice Story, who spoke of the court, upon the plain principles of justice, general power of the court to reinstate a and is according to the known practice of case dismissed by mistake, it is evident that other judicial tribunals in like cases." he had in mind, for he says so, that the
It is to be observed, while the learned first dismissal was for a clerical mistake, justice, speaking for the court in that case, which is a well-recognized ground for coraffirmed the “power of this court to rein- recting judgments at subsequent terms, state any cause dismissed by mistake,” the upon notice and proper showing. case had been dismissed at the first hearing, The plaintiff in error also cites Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013, 6 Sup. I nevertheless the decision of the case rests Ct. Rep. 901. That case contains an em- upon the emphatic denial of the power of phatic statement of the doctrine that a the court to set aside a judgment upon judgment at law cannot be reversed or an- motion made after the term and grant a nulled after the close of the term at which new trial, except in the limited class of it was entered by the court rendering the cases enumerated as reached by the previous judgment, for errors of fact or law, with the practice under writs of error coram vobis, exceptions which we have heretofore noted. or for the purpose of correcting the record In that case Negley had been sued in the according to the fact where mistakes have supreme court of the District of Columbia occurred from the misprision of the clerk. upon a certain order. Negley answered, de- We content ourselves with repeating the nying his liability, and asserting that he doctrine of this recent decision, without resigned the order only as agent; denied also capitulating previous cases in this court, in that plaintiff was the holder of the order, which the point has been noticed, for the or notice of nonpayment. After issue joined purpose of showing their harmony. It has on the pleas, on April 3, 1879, Negley not been the uniform doctrine of this court. appearing, a jury was called, and verdict No principle is better settled, it was said found for the plaintiff, upon which judg. in Sibbald v. United States, 12 Pet. 488, ment was rendered.
492, 9 L. ed. 1167, 1169, 'or of more uniOn September 4, 1882, Negley filed his versal application, than that no court can motion to vacate the judgment and set aside reverse its own final decrees or judgments the verdict rendered against him ex parte, for errors of fact or law, after the term in because of irregularity, fraud, and deceit, which they have been rendered, unless for and the negligence of his attorney. Affi- clerical mistakes (Cameron v. MÄRoberts, 3 davits were filed in support of this motion, Wheat. 591, 4 L. ed. 467; Bank of Commonsetting forth a denial of Negley's personal wealth v. Wistar, 3 Pet. 431, 7 L. ed. 731), liability on the order; that he was served or to reinstate a cause dismissed by miswith process when temporarily in Washing-take (The Palmyra, supra); from which it ton, being then and since a resident of Pitts- follows that no change or modification can burg; that he employed counsel and filed be made, which may substantially vary or his defense, but received no further notice affect it in any material thing. Bills of from the fall of 1874 until July 26, 1882, review, in cases in equity, and writs of error when he was sued on the judgment in coram vobis at law, are exceptions which Allegheny county, Pennsylvania; that plain cannot affect the present motion.'” tiff took no notice of the plea filed in the The case just cited is relied upon because original case until May 3, 1877; that in the of its reference to The Palmyra. But the meantime, without defendant's knowledge, point to which that case is cited was not his counsel had removed from Washington, involved. As we have seen, it had already leaving him without counsel, as plaintiff been limited in Rice v. Minnesota & N. W. and his counsel well knew, and on April 3, R. Co. 21 How. 85, 16 L. ed. 32, to appeals in 1879, without notice, and while Negley was admiralty. Further, that case, as we have ignorant of the proceeding, called for a seen, was one of clerical mistake in making jury and procured the verdict and judgment up the record. against him.
We therefore find nothing in the previous Other testimony was taken, and after decisions of this court justifying the conhearing on December 2, 1882, the supremetention of the plaintiff in error as to the court of the District set aside the verdict right to correct the judgment of the previbecause of "irregularity, surprise, fraud, ous term, in view of the character of the and deceit,” and granted a new trial. In error sought to be corrected, and more this court the judgment of the supreme especially in the attempt, under the circumcourt was reversed for error in entertain stances shown in this record, to set aside a ing and granting the motion to set aside judgment of a former term, and render a the judgment, and the cause was remanded, new and different judgment without notice without prejudice to Negley's right to file to the party who had been dismissed by a a bill in equity. After citing and quoting former judgment. a from the Bronson Case (104 U. S. 410, 26 As we have seen, the question here inL. ed. 797), Mr. Justice Matthews, who devolved pertains to a case where no notice livered the opinion of the court, said: is given and a new and different judgment
“Although the opinion (Bronson Case] is entered at a subsequent term. It is urged also shows that upon the facts of that case when the necessary facts appear in the the action of the circuit court in vacating its record such correction can be made without judgment after the term could not be justi-notice, because, it is said, there is nothing fied upon any rule authorizing such relief, to litigate. But aside from the fact that whether by motion or by bill in equity, this proposition ignores the rule that juris