« ΠροηγούμενηΣυνέχεια »
See same case below, 26 App. D. C. 124; on former appeal, 25 App. D. C. 415.
The facts are stated in the opinion.
Mr. Justice Day delivered the opinion of the court:
"Thence the case was continued from sitting to sitting into the April sitting, 1899, when, on the 12th day of June, 1899, at a calling of the docket under the general order of court, said action was dismissed." And then the entry:
"And now, at this present October sitting, 1900, to wit, on the 18th day of said October, 1900, said dismissal is stricken off and the case brought forward, the same hav
This is a writ of error to the court of appeals of the District of Columbia to reverse a judgment of that court affirming a judging 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 defendant's second plea.
On November 17, 1900, there was a motion 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, upon a judgment rendered in the superior court for the county of Suffolk, commonwealth of Massachusetts, on November 20, 1900. Copy of the record in the Massachusetts court is made part of the record in the supreme court of the District of Co
Two pleas were filed to the declaration in the supreme court of the District of Columbia; first, the general issue nul tiel record; second, a special plea, wherein the defendant set out that on June 12, 1899, the cause against him in the Massachusetts court was dismissed; that under the rules of court This record shows that suit was brought that dismissal became final on the first Monupon 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. ThereThere- 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 general order of the court upon the calling of the docket. Two days thereafter, June 10, 1897, the order of dismissal was stricken out and the case restored to the docket.
On June 23, 1897, attorney for the defendant entered an order withdrawing his appearance. On June 13, 1898, an attorney, whose name does not appear elsewhere in the record, withdrew his appearance. The record then shows:
"Thence the case was continued to the July sitting, 1898, when said exceptions, having been presented to the court, were disallowed as not conformable to the truth, the bill not properly and correctly stating the evidence so as to fairly present the questions of law raised by the defendant's exceptions."
took no steps to suggest in that court his discharge in bankruptcy; that the action of the court in Massachusetts, restoring the case to the docket, was without summons, citation, or notice of any kind to him, or to anyone for him, and without his knowledge; that the court had no jurisdiction to render the judgment sued upon.
Issue was joined upon the first plea, and to the second plea a demurrer was filed, which was sustained by the supreme court of the District of Columbia. From the order sustaining the demurrer special appeal was taken on January 6, 1905, to the court of appeals for the District of Columbia, and on April 17, 1905, the judgment below was reversed and the cause remanded. 25 App. D. C. 415.
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 electing to stand on his demurrer, judgment was entered for the defendant, and the plaintiff appealed to the court of appeals of the District of Columbia.
On October 10, 1905, the case. was submitted; and, on the 12th day of the same month, judgment below was affirmed without further opinion.
No contention is made in the brief or oral argument of counsel for plaintiff in error that the question for decision in this case is changed or modified because of the fact that terms of court are abolished by statute in Massachusetts. The statutes of that commonwealth (Rev. Laws, vol. 2, 1382, § 24) provide for "sittings" of the superior court at Boston, in the county of Suffolk, for civil business, on the first Tuesdays of January, April, July, and October. The exemplified copy of the record in this case shows that the case was dismissed under the general order of the court at the April sitting, 1899, on the 12th day of June, 1899. At the October sitting, 1900, to wit, on October 18, 1900, the dismissal was stricken. off for the reason stated, and on November 20, 1900, the new judgment was rendered.
Before taking up the case in detail it must be regarded as settled by previous decisions of this court that, where an action is brought to recover upon a judgment, the jurisdiction of the court rendering the judgment is open to inquiry. And the constitutional requirement as to full faith and credit in each state to the public acts, records, and judicial proceedings of every other state does not require them to be enforced if they are rendered without jurisdiction, or otherwise wanting in due process of law. This principle was so lately asserted by a decision in this court as to render unnecessary more than a reference to the consideration of the subject in Old Wayne Mut. Life Asso. v. McDonough, de-ment, either on some day in the term, upon cided on January 7, 1907, of the present term. 204 U. S. 8, 51 L. ed. 345, 27 Sup. Ct. Rep. 236.
It is also an elementary doctrine of this court that a judgment rendered in personam against a defendant without jurisdiction of his person is not only erroneous but void. Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565. And the same case holds that such judgment is not required to be enforced in another state, either by the due faith and credit clause of the Constitution, or the act of Congress (Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677) passed in aid thereof.
It is apparent from the statement of facts preceding this discussion that the precise question to be determined is whether a court which has once rendered a judgment in favor of a defendant, dismissing the cause and discharging him from further attendance, may, at any time after the term, and at a subsequent term, no matter how remote from the time of rendering judgment, without motion or proceeding to vacate the judgment, and without notice, set aside the judgment so rendered and render a new judgment against the defendant for the recovery of a sum of money against him.
The general principle is that judgments cannot be disturbed after the term at which they are rendered, and can only be corrected, if at all, by writ of error, or appeal, or relieved against in equity in certain cases. There are, it is true, certain exceptions to the rule, within which, it is the contention
In Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N. E. 468, the supreme judicial court recited the previous cases, holding that terms no longer exist in the superior court, and said (p. 22, N. E. p. 471): "When we had terms the practice was to enter judg
motion, or, of course, on the last day. Howe, Pr. 267. Since terms have been abolished the practice is regulated by statutes and the rules of the courts." In the second plea it is averred, and admitted by the demurrer, that under the rules of court the dismissal became final on the first Monday of July, 1899; that is, the first Monday of the following month.
We think this rule day equivalent to the end of a term. It is the time at which, by the rules of court adopted under statutory power, the judgment became final, unless set aside for mistake within the principles to be hereinafter discussed.
Pierce v. Lamper, 141 Mass. 20, 6 N. E. 223, was a case where a suit had been dismissed upon the call of the docket under the same rule under which the case against Karrick, defendant in error, was dismissed. for want of action within the year, which
order should have been followed by an entry the clerk simply made a docket entry "disof judgment of dismissal, in place of which missed on call." The court held, since it was the duty of the clerk to have entered the dismissal, it was to be deemed in law as actually entered and a final disposition of the case; that at a subsequent term the court had no power to vacate it, except by writ of review filed within one year under the statute.
The doctrine that a judgment is final at the term unless set aside within the exceptions for mistake seems fully recognized by other decisions in Massachusetts. Radclytie
v. Barton, 154 Mass. 159, 28 N. E. 148, | The Glamorgan, 2 Curt. C. C. 236, Fed. Cas. 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, 656."
At common law a writ of error coram vobis brought before the court certain mistakes of fact not put in issue or passed upon, such as the death of a party, coverture, infancy, error in process, or mistake of the clerk. This writ is no longer in use, but its objects are attained by motion. Pickett v. Legerwood, 7 Pet. 145, 147, 8 L. ed. 638, 639.
As in the common-law writ of coram vobis, so in the proceeding by motion, after a party has been dismissed from the action by judgment he is brought again into the court by notice of the the new proceeding. Ferris v. Douglass, 20 Wend. 626.
In discussing the exceptions to this rule for the correction of judgment by writ of error coram vobis, or motion, now substituted for the old practice, the only one which has application here is error in the process through the default of the clerk.
We are unable to find in the present record any clerical mistake. The entry of action during the year upon the bill of exceptions appears to have been duly entered upon the minutes of the court; the clerk made no mistake about it. The court erroneously rendered a judgment, believing 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 L. ed. 91:
"At the end of the term the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that, we can do no more than correct any clerical errors that may be found in the record of what we have done."
The question underwent a full discussion, Mr. Justice Miller delivering the opinion of the court, in Bronson v. Schulten, 104 U. S. 410, 26 L. ed. 797. On page 415, L. ed. p. 799, he said:
"But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and, if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court, that, while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Burlington & S. W. R. Co. supra; St. Louis Public Schools v. Walker, 9 Wall. 603, 19 L. ed. 650; Brown v. Aspden, 14 How. 25, 14 L. ed. 311; Cameron v. M'Roberts, 3 Wheat. 591, 4 L. ed. 467; Sibbald v. United States, 12 Pet. 488, 9 L. ed. 1167; United States v.
In Hickman v. Ft. Scott, 141 U. S. 415418, 35 L. ed. 775, 776, 12 Sup. Ct. Rep. 9, 10, there was a petition to correct by new findings the special findings of fact upon which the court had rendered a judgment at a former term, which findings, it was averred, had been omitted, some unavoidably and others accidentally; but the application was overruled and error was prosecuted to this court, which, speaking through Mr. Justice Harlan, said: "The judgment was the one the court intended to enter, and the facts found were those only which the court intended to find. There is here no clerical mistake. Nothing was omitted from the record of the original action which the court intended to make a matter of record. The case, therefore, does not come within the rule that a court, after the expiration of the term, may, by an order nunc pro tunc, amend the record by inserting what had been omitted by the act of the clerk or of the court. Re Wight (Wight v. Nicholson) 134 U. S. 136, 144, 33 L. ed. 865, 10 Sup. Ct. Rep. 487; Fowler v. Equitable Trust Co. 141 U. S. 384, 35 L. ed. 786, 12 Sup. Ct. Rep. 1; Galloway v. McKeithen, 27 N. C. (5 Ired. L.) 12, 52 Am. Dec. 153; Hyde v. Curling, 10 Mo. 359."
This case from 10 Missouri was quoted with approbation also in the case of Re Wight (Wight v. Nicholson) 134 U. S. 136, 145, 33 L. ed. 865, 869, 10 Sup. Ct. Rep. 487, 490, as follows: "A court has power to order entries of proceedings had by the court at a previous term to be made nunc pro tunc; but, where the court has omitted 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 exception to the general doctrine of conclusiveness of the judgment after the term, and there is no indication that the correction made in that case was made without notice to the party interested. The adverse party was present and resisted the order, so there was opportunity to be heard.
In the case Re Wight this court approved an order of the circuit court of the United States putting in the record at a subsequent term an order which was made at a previous term of the court, remanding the case to the district court. "A clerical error, as its designation imports, is an error of a clerk 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 mistake." Sibbald Sibbald v. United States, 12 Pet. 492, 9 L. ed. 1169.
of another alleged exception to the general rule of finality of judgments, counsel for plaintiff in error says, after conceding the general rule that jurisdiction is lost after the lapse of the term at which judgment is rendered:
"But a well-known exception to this general rule is that a judgment of dismissal based upon a mistake or inadvertence, such as appear in this record, can be set aside after the term, and that is the proposition with which this court is concerned in this case. The reason is that jurisdiction is not lost by a dismissal by a mistake. This is one of the exceptions to the general rule that has been recognized in the decisions of this court for nearly a century."
To support this contention the case of The Palmyra, 12 Wheat. 1, 6 L. ed. 531, is relied upon. In that case, which was one in admiralty, the court found there was no final decree in the court below, and, therefore, it was not appealable. The next term of the court a corrected transcript was adduced, showing there had been a final decree which the clerk, through mistake, had failed to include in the record, and the court permitted the filing of a new transcript. Mr. Justice Story, delivering the opinion of the court, said:
"The difference between a new appeal and a reinstatement of the old appeal after a dismissal, from a misprision of the clerk, is not admitted by this court justly to involve any difference of right as to the stipulators. Every court must be presumed to exercise those powers belonging to it which are necessary for the promotion of public justice; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake. The reinstatement of the cause was founded, in the opinion of this court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases."
It was cited to the proposition that a court might correct misprision of clerks. Bank of United States v. Moss, 6 How. 38, 12 L. ed. 334.
In 21 How. 85, 16 L. ed. 32, Rice v. Minnesota & N. W. R. Co., an opinion delivered by Mr. Chief Justice Taney, it was held that at common law, where a case upon error proceedings had been dismissed for want of jurisdiction, it could not be reinstated at a subsequent term upon a showing that the final judgment below, for want of which the case was dismissed, had been accidentally omitted from the record as a production of the correct record showed.
In the case The Palmyra Case was relied upon in support of the motion, but the court declined to follow it in a common-law case, and limited its application to the jurisdiction of an appellate court in admiralty cases, which, the Chief Justice said, was much wider than in a case at common law.
In the case of Alviso v. United States, 6 Wall. 458, 18 L. ed. 721, a case dismissed for want of citation at a former term, omitted to be returned from neglect of the clerk, was reinstated upon the authority of The Palmyra; but in that case Mr. Justice Nelson, speaking for the court, distinctly stated that the omission in The Palmyra Case was the error of the clerk in making out the transcript, and there is no reference to the general authority of the court to reinstate a case dismissed by mistake, regardless of the character of the omission or error.
The Palmyra, like every other case, must be read in the light of the point decided in the case, and in considering the language of Mr. Justice Story, who spoke of the general power of the court to reinstate a case dismissed by mistake, it is evident that 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. | 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 universal application, than that no court can reverse its own final decrees or judgments for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes (Cameron v. M'Roberts, 3 Wheat. 591, 4 L. ed. 467; Bank of Commonwealth v. Wistar, 3 Pet. 431, 7 L. ed. 731), or to reinstate a cause dismissed by mistake (The Palmyra, supra); from which it follows that no change or modification can be made, which may substantially vary or affect it in any material thing. Bills of review, in cases in equity, and writs of error coram vobis at law, are exceptions which cannot affect the present motion.""
On September 4, 1882, Negley filed his motion to vacate the judgment and set aside the verdict rendered against him ex parte, because of irregularity, fraud, and deceit, and the negligence of his attorney. Affidavits were filed in support of this motion, setting forth a denial of Negley's personal liability on the order; that he was served with process when temporarily in Washington, being then and since a resident of Pittsburg; that he employed counsel and filed his defense, but received no further notice from the fall of 1874 until July 26, 1882, when he was sued on the judgment in Allegheny county, Pennsylvania; that plaintiff took no notice of the plea filed in the original case until May 3, 1877; that in the meantime, without defendant's knowledge, his counsel had removed from Washington, leaving him without counsel, as plaintiff and his counsel well knew, and on April 3, 1879, without notice, and while Negley was ignorant of the proceeding, called for a jury and procured the verdict and judgment against him.
Other testimony was taken, and after hearing on December 2, 1882, the supreme court of the District set aside the verdict because of "irregularity, surprise, fraud, and deceit," and granted a new trial. In this court the judgment of the supreme court was reversed for error in entertaining and granting the motion to set aside the judgment, and the cause was remanded, without prejudice to Negley's right to file a bill in equity. After citing and quoting from the Bronson Case (104 U. S. 410, 26 L. ed. 797), Mr. Justice Matthews, who delivered the opinion of the court, said:
The case just cited is relied upon because of its reference to The Palmyra. But the point to which that case is cited was not involved. As we have seen, it had already been limited in Rice v. Minnesota & N. W. R. Co. 21 How. 85, 16 L. ed. 32, to appeals in admiralty. Further, that case, as we have seen, was one of clerical mistake in making up the record.
We therefore find nothing in the previous decisions of this court justifying the contention of the plaintiff in error as to the right to correct the judgment of the previous term, in view of the character of the error sought to be corrected, and more especially in the attempt, under the circumstances shown in this record, to set aside a judgment of a former term, and render a new and different judgment without notice to the party who had been dismissed by a former judgment.
As we have seen, the question here involved pertains to a case where no notice 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