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and respondents' motion to dismiss the appeal for lack of jurisdiction of this court would have to be sustained. If, conversely, the court acted in excess of its authority when it made the order appealed from, this court has jurisdiction of the appeal; and plaintiffs' objections to the jurisdiction of the lower court are sound.
This being a suit in equity, the District Court had full power to amend, correct, or vacate its decree at the same term in which it was made, if it was discovered that error had been committed or that fraud had been perpetrated upon the court by either of the parties or their agents, or if for other satisfactory reason the court in its discretion believed that it was just that the decree should be vacated or amended or reformed. Doss v. Tyack et al., 14 How. 297, 14 L. Ed. 428. Control of the court over its own judgments during the term at which they are rendered is spoken of by Justice Miller as of "everyday practice." Bassett and Harger v. United States, 9 Wall. 38, 19 L. Ed. 548. And later the same learned justice, speaking for the court in Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797, said:
“It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however exclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modi. fied, or annulled by that court."
The fact that an appeal was taken and that the decree was here affirmed did not necessarily take away the power of the lower court to vacate the decree during the term, if a fraud had been practiced. When the mandate of this court was filed affirming the decree the suit was again in the District Court. The rule is that a lower court is bound by the decree of the appellate court, and its duty is to put the decree into effect according to the mandate, and there is no authority to give further relief. But if during the term there is a showing, whether by motion or otherwise, of fraud or other wrong practiced by the prevailing party, the lower court has power to vacate a decree and grant a new trial notwithstanding an affirmance by a higher court. This would seem to be so because, so long as the term of court lasts in which the decree was made and entered, the decree remains subject to the judicial power of the court; and if during such term it is annulled, such annulment vacates what has been done, and the decree stands as if no appeal had been had. In Goddard v. Ordway, 101 U. S. 745, 25 L. Ed. 1040, an order allowing an appeal was granted and entered on the minutes of the court, and subsequently, during the term, this order was set aside and vacated at the instance of the party in whose favor the appeal had been granted. The Chief Justice, speaking for the court, said:
"We are unable to see how the allowance of an appeal differs in this respect from any other judicial order made in the cause. If the one is subject to revocation or amendment while the term continues, so, as it seems to us, must be the other.” Ex parte Fuller, 182 U. S. 562, 21 Sup. Ct. 871, 45 L. Ed. 1230.
This brings us to the point where we must ascertain whether the order vacating the decree was made during the term at which the decree was rendered. Counsel for appellants have predicated assignments of error upon the ground that the defendants' motion to vacate was not filed until after the commencement of a term of a court succeeding the one whereat the decree was made. Their brief, too, is prepared upon an assumption that such was the fact. Respondents counsel, however, address our attention to the omission of the record to sustain the statement that the term at which the decree was rendered had closed. The transcript in the original appealed case shows that the trial was had in August, 1904, at a special term of the District Court held at Fairbanks, but there is nothing in that record that indicates an adjournment of such special term; while the record on this appeal shows affirmatively that at different times in April, 1905, the parties were before the court in the matter of a receivership asked for by plaintiffs. The only evidence of when there was any adjournment of court for the term is found in an order made by the judge at Fairbanks on August 4, 1906, wherein nunc pro tunc he extended the time for the plaintiffs to prepare and have signed their bill of exceptions to the order vacating the decree, in which order it is recited that “the final order in setting aside the judgment in the above-entitled cause was not made and signed until the sixteenth day of September, 1905; that the court adjourned sine die on the same day, and that the judge of said court left the Third division of the territory of Alaska immediately thereafter,” etc. This is evidence of the adjournment of the term after the court had vacated the decree, but it in no way sheds light upon what term was so adjourned. Inasmuch as the District Courts of Alaska are courts of general jurisdiction, our determination of the point must be guided by those usual rules which, in the absence of a showing to the contrary, presume that courts have proceeded within the general scope of their powers, and that their orders and judgments have been given with authority. Fowler v. Equitable Trust Co., 141 U. S. 384, 12 Sup. Ct. 1, 35 L. Ed. 786; Stockslager v. United States, 116 Fed. 590, 54 C. C. A. 46. Resting our decision, therefore, upon the ground that the court had jurisdiction during the term at which it made the decree in specific performance to vacate the same, and that its order of vacation was presumably made during the same term, defendants' motion to dismiss the appeal for the reason that it is not an appealable order is sustained.
If the record had disclosed that the motion to set aside the decree and the action of the court vacating the same and granting a new trial were had at a term subsequent to the special term whereat the cause was heard, our conclusion would have been that the court exceeded its authority, and that the proper order would be to remand the case with directions to set aside the order vacating the decree and granting a new trial, to dismiss the defendants' motion to vacate, and to enforce the original decree of specific performance. We express this opinion now because it may be that appellants' positive statement in their assignment of errors and brief to the effect that the motion to vacate was made and action thereon were had at a subsequent term and their assumption that such is the truth will be proved by indisputable record facts, and because the briefs discuss the case from such a standpoint, and because if plaintiffs are correct in their assumption it is to the interest of all parties that the litigation should be ended without another appeal. Our reasons for believing that defendants would not be entitled to the relief sought at a subsequent term of the court are briefly these: As we have shown, the rule is that during the term at which a decree is rendered the court which pronounces it may vacate or annul it or amend or modify or reform it. But the power of a court of equity to vacate or annul its own judgment or decree does not extend beyond the term at which the decree was pronounced. Cameron v. McRoberts, 3 Wheat. 591, 4 L. Ed. 467. There is a practice in some states whereby a judgment may be vacated after the term for perjury by the successful party, but generally, if not always, this is under authority to be found in some statutory provision which has expressly conferred ample yet prescribed control over the judgment or decree of the court whereby it may be so vacated. Nebraska has such a statute (section 602, Code of Civil Procedure); so has Washington (section 5153, Ballinger's Ann. Codes & St.). Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. The statute of Alaska, as we shall see, contains no such provision. Bills of review or proceedings analogous to bills of review may also be brought to vacate decrees for fraud or collusion or lack of jurisdiction, but they also are exceptions based upon the principle that a judgment or decree may be vacated after the term in cases where the cause relied on to set it aside affects the validity of the judgment. Ex parte Sibbald v. United States, 12
v Pet. 488, 9 L. Ed. 1167. Doubtless a motion upon notice may be regarded as good practice.
It has been earnestly insisted by counsel for the appellees that the District Court had an inherent power to vacate the decree even after the term had expired, because the fraud in the judgment vacated rested upon the perjured testimony of the prevailing party, and upon such perjured testimony alone. But we believe that the great weight of authority is against this contention, and that the acts for which a court of equity will on account of fraud annul a judgment or decree between the same parties after the term has ended have relation to frauds extrinsic or collateral to the matter tried, and not to a fraud in the matter on which the decree was rendered. The leading case of United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, establishes this precise doctrine. After a careful review of the authorities, English and American, Justice Miller used this language:
"That the mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife than any compensation arising from doing justice in individual cases."
In Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929, Chief Justice Waite cited the Throckmorton Case, saying that it had been settled that the fraud in respect to which relief will be granted where a decree is sought to be set aside after the decisions of a judicial tribunal must be such as has been practiced upon the unsuccessful party and prevented him from exhibiting his case fully, and that false testimony or forged documents even are not enough, if the disputed matter has actually been presented to or considered by the appropriate tribunal. More than 12 years after the Throckmorton Case and Vance v. Burbank, supra, the Supreme Court, in 1891, decided Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870, which is not infrequently relied upon as modifying the doctrine of the two earlier cases cited. Evidently the court itself did not intend the decision to be a modification, inasmuch as the opinion refers to the Throckmorton Case to sustain the rule that while generally a defense cannot be set up in equity which has been fully and fairly tried at law, still equity will regard an application to grant relief against a judgment which it is against conscience to execute, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented from so doing by fraud or accident, unmixed with any fraud or negligence in himself or his agents. The implication from the court's discussion seems to be that where there has been a trial and judgment after full opportunity was given for the introduction of evidence, and no extrinsic or collateral fraud has occurred, the general rule should prevail. In Bailey v. Sundberg (decided by Judges Wallace and Lacombe in 1892) 49 Fed. 583, 1 C. C. A. 387, it was held that if, on a libel in rem for collision, the master of the libelee, though not a formal party, took an active part in the defense, a dismissal on the merits rendered the questions res adjudicata as against a subsequent libel in personam against him. In Graver v. Faurot (C. C.) 64 Fed. 241, decided in 1894, an action was brought to set aside on the ground of fraud a decree rendered in a state court. Defendant demurred to the bill. The fraud charged was perjury by Faurot and the deception of the court. Judge Jenkins said the question was “sharply presented” whether a judgment can be attacked for fraud and the prevailing party deprived of the benefit thereof when he has obtained that judgment by perjury in his answer or upon the trial. Referring to the Throckmorton and Marshall v. Holmes Cases, supra, the learned judge said he could not distinguish between the two cases, but followed the Throckmorton Case because the later case cited it with approval, and because the fraud in the case before him was not extrinsic, but was in issue in the primary suit. An appeal was taken, and the Circuit Court of Appeals of the Seventh Circuit (76 Fed. 257, 22 C. C. A. 156) reversed the case upon the ground that it was not one within the spirit or reason of the decisions of the Supreme Court cited, inasmuch as there never was a trial in Graver v. Faurot, the complainant having failed to reply to the answer, and the case having been submitted with the answer as conclusive proof. The court points out that there was no conflict or weighing of evidence, but decree went as a matter of course; and the decision turned upon the point that the case was one of fraud that was extrinsic and collateral, distinct from and antecedent to the use of the answer at the hearing. The judges referred to a possible inconsistency between the decisions of the Supreme Court, but distinguished the case before them from both. In Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95, decided in 1895, after reargument, the Supreme Court, by Justice Gray, used this language:
“It has often indeed been declared by this court that the fraud which entitles a party to impeach the judgment of one of our own tribunals must be fraud extrinsic to the matter tried in the cause, and not merely consist in false and fraudulent documents or testimony submitted to that tribunal and the truth of which was contested before and passed upon by it." -citing the Throckmorton Case as first among those establishing the doctrine announced.
This opinion, it will be observed, was delivered just before the case of Graver v. Faurot, 76 Fed. 257, 22 C. C. A. 156, was decided by the Court of Appeals, but evidently it was not brought to the attention of the latter court. A few years later (1898) the Court of Appeals of the Second Circuit decided United States v. Gleeson, 90 Fed. 778, 33 C. C. A. 272. That was a suit to vacate and annul a judgment on the sole ground that defendant induced the court to make its judgment solely by his own false and perjured testimony. But the court followed the doctrine of the Throckmorton Case as reiterated in Hilton v. Guyot, supra, and by the rule of stare decisis affirmed the decision of the Circuit Court sustaining a demurrer to the bill. Marshall v. Holmes, supra, was there called to the court's attention, and they answered the suggestion of a possible modification of the Throckmorton Case in this way:
“Precisely the same question—as to the effect of Marshall v. Holmes upon U. S. v. Throckmorton—was before us in the case of Bailey v. Sundberg, 1 U. S. App. 101, 1 c. C. A. 387, 49 Fed. 583. In that cause the libelant, who had been defeated in an action in rem against a steamship, brought a new action in personam against her owners. This court held that the decree in the earlier suit precluded Bailey from a re-examination of the same questions in the later suit. Subsequently he amended his libel, charging that, without negligence or laches or other fault on the part of the libelants, the respondent, by his false evidence given in the action in rem, enabled the claimants of the steamship to obtain the judgment therein, which judgment was set up as res adjudicata. Exceptions to this amendment were sustained by the District Court, and the libel dismissed. Upon appeal to this court the decree of the District Court was affirmed upon the authority of U. S. v. Throckmorton, no opinion being written. The libelant thereupon twice appealed to the Supreme Court for a certiorari, upon briefs which presented with very great fullness the apparent conflict between the two cases in 98 U. S. (25 L. Ed.) and 141 U. S. and 12 Sup. Ct. (35 L. Ed.) and urged upon the consideration of the court that the judges in the Second Circuit were following the earlier, rather than the later, decision. Both applications were denied. 145 U. S. 628, 12 Sup. Ct. 259; 154 U. S. 494, 14 Sup. Ct. 1142. Until the attention of this court is called to some decision of the Supreme Court, other than Holmes v. Marshall, criticizing or limiting the doctrine of U. S. v. Throckmorton, it would seem that the principle of stare decisis should preclude its entertaining a bill which seeks to vacate or annul a judgment solely on the ground that such judgment was procured by means of the perjured testimony of the party whom it benefits."
Again, in the later case of United States v. Beebe, 180 U. S. 343, 21 Sup. Ct. 371, 45 L. Ed. 563, decided in 1901, the Supreme Court, through Justice Peckham, reaffirmed the general principle of the Throckmorton Case, supra, holding that false representations were not such a fraud as a court of equity will relieve against by setting aside a judgment in a case where such representations were made.
A still later decision is Bailey v. Willeford (C. C.) 126 Fed. 803, where Judge Simonton interpreted the rule of the Throckmorton Case as did the Court of Appeals in U. S. v. Gleeson, supra, and his decision was affirmed in 1905 by the Court of Appeals of the Fourth Circuit. Bailey v. Willeford, 136 Fed. 382, 69 C. C. A. 226. It will be seen from these cases that the doctrine upheld by the federal courts