v.
LEWIS.
379
J. If. Drake, fo:" motion. G. If. Yeaman, contra. CHOATE, J. This is a motion to open a final decree entered at the September term 1879, whereby the, defendants Wettstein, Meyer and Ochninger were decreed to pay to the co:mplainant, as assignee in bankruptcy of Wallach & Co., the sum of $3,109.24. These defendants wete judgment creditors of Wallach & Co.' before their bankruptcy, and after the execution of a general assignment for the benefit of creditors by the bankrupts, and before the filing of the original petition in bankruptcy, these defendants and several other judgment creditors took out their executions and placed them in the hands of the sheriff, who levied on goods covered by the general assignment. Afterwards, the sheriff requiring indemnity before he would sell the goods, the several judgment creditors, defendants, indemnified him, but some of the judgment cl'editors withdrew their bonds and took action, which' has been held In this suit to exempt them from liability to account to the plainant for the proceeds of ths goods b0ld by the sheriff. The suit was brought against the general assignee, the sheriff and the judgment creditors to set aside the voluntary assignment, and to compel the sheriff and the judgment· creditors to account for and pay over the value of the goods sold. The final decree was for the complainant, setting aside the assignment, and charging the sheriff and the judgment creditors, who did not withdraw their authority to the sheri:fl\ with the proceeds of the goods. These moving defendants were duly servedwithi process and appeared in the suit, but put in no answer. 'Their time to answer was twice extended by stipulation. It appears now, by the moving papers, that through some :misapprehension on the part of their attorney he ,was led to believe that no Bubstantial relief was sought against them in the suit. They were, however, regularly served with notice of the proceedings in the cause, had notice of the applications for the interlocutory and for the final decree, which was entered, as above stated, at the last September term. They now
all
880
FEDERAL REPORTER
claim that they have the same precise defence which has been sustained as to other defendants; that is, that before the sale they withdrew the sheriff's authority to sell on their account, and that they have lost the opportunity to make thi9 aefence solely through this mistake of their attorney. the others, defendants, who were charged by the decree, have appealed to the circuit court, and the marsha.l hag taken proceedings to enforce the entire decree against these defendants. The case is clearly one in which the court would gladly give these parties relief if it had the power. They are apparently in the position of being' called on to pay what other defendants, upon the same state of facts, have been held not liable to pay, and if the appeal of the defendants who have been charged should be sustained, they are also charged with what will in that case be held to haye been a claim not well founded against any of the defendants. But it is clear that,. after the term at which a final judgment or decree is entered, the courts of the United States have no power to open the judgment or decree and grant a rehearing, or let a defendant in to answer, unless at the time at which the judgment or decree is entered some order is made virtually keeping the judgment open for further relief or proceedings. Supr. Ct Rules in Eq. 18 and 19; Mueller v. Ehlers, 1 Otto, 249 j Scott v. Blaine, 1 Bald. 287; Herbert v. Butler, 14 Bl. C. C. 35'!. The rule is based on the theory that public and private interests require that there should be an end of litigation after a party has had his day in court, and ample opportunity to present and assert his rights by way of prosecution or defence. And in the courts of the. United States this limit of litigation, subject to the right of appeal or review, is fixed at the end of the term of the court at which the final judgment is entered. In this case these defendants had ample opportunity to present their defence, and it must be accounted their own negligence and laches that they did not do so. At any rate, the court is without power to relieve them on motion. The only suggestion of irregularity in the proceedings in
LINDEB V. LEWIS.
8S1
t'he cause is, that no formal order appears to have been entered that the bill be taken pro confesso against these defendants. It is the ordinary practice to enter such an order, but I cannot say that the omission to do so affects the regularity of the final decree or makes it any less absolute. The rules require that, if no answer or plea is put in, the bill shall be taken p1'O confesso, and the entry of the interlocutory decree upon notice, and of the final decree, also upon notice, must, I think, be held to be, in effect, equivalent to such an order. I do not perceive that the failure to enter order, these defendants having full notice of all the proceedings, and being, of course, chargeable with notice that they had not answered, can possibly have prejudiced them, and the want of such an order is one of those defects of form, or such a want of form, as is referred to in Rev. St. § 954, which the court is required to disregard. See Bank v. White, 8 Pet. 262. It is further suggested that as the complainant is an assignee in bankruptcy he is, more than plaintiffs ordinarily, under the control of the court, and that he should, therefore, be restrained, in the exercise of the powers of the court in bankruptcy, from taking an unconscionable advantage of these defendants for the benefit of the creditors of the bankrupts. Whether this court, sitting in bankruptcy, could relieve these judgment debtors against the collection of this judg. ,ment on the ground that it could, as a court of bankruptcy, take notice of their alleged claims for equitable relief, and if so, whether it could be done against the objection of any creditor of the bankrupts; in other words, whether it would be within the powers of the court in bankruptcy to relieve them from that absolute estoppel by record to deny the obligation to pay this judgment, which the judgment itself creates, is a question which cannot be raised here, because this application is not made to the court sitting in bankruptcy, but to the court exercising its jurisdiction in equity, and bound by the rules established for such a court, and it is a. motion in this very cause in which the decree must be held to import
as!
FEDERAL REPORTER.
absolute verity. And in this court, sitting in this Muse in equity, the complainant certainly has aJl the rights oi other suitors. Motion denied.
MUSltR
and another
'V.
AMERICAN EXPRESS COMPANY.
(Oircuit OO'/Jll't, 8. D. N8fJJ York. ·
January 24, 1880.)
CoMMON CARRIEB-LULITATION OF LIABILITY- u LOBS OR DAMAGE BY FIRE"-NEGLIOIllNCE OF AGENT.-A. stipulation in a receipt exempting
an express company from liability Uforany loss or damage by fire," does not relieTe such company where such 1098 occurred through the negligence of a railroad company employed by the express company to transport the goods in controversy. BAME-LIMITATION OJ' LIABILITY TO STIPULATED SUM-REAL VALUE NOT
DISCLOBED.-A 'stipulation in a reeeipt limitating the liability of the car· rier to a stateg sum, is binding upon the shipper, in the absence of · disclosure. to the real value of the goods shipped. WALLAOE, J. The plaintiffs delive.red to the American Express Company, at Syracuse, N. Y., It trunk with contents of the value of $4,172 for transportation to New York city, taking a receipt, which, among other stipulations, contained those reading as follows: "T.Qis compa,ny is not to be held liable for any loss or damage \}y fire, - - · nor in any event shall this company be keld liable or responsible, nor shall any demand be made UpOlJ them, beyond the sum of $50, at which sum said property hereby valued unless the' just and true value thereof is siated herein. " The value of the trunk and contents was not stated in the receipt, and no evidence was given to show that the agent of the defendant knew the value of the property. Through the negligence of the employes of the New York Central & Hudson River Railroad Company, which corporation was employed by the defendant to transport the property in question, the cttr in which the express company shipped the property for tra.nsportation to New York city was thrown from the track, and a fire ensued which destroyed the plaintiff's trunk and contents.
\
KUSER
tI.
AMERICAN JIIXPRESS CO.
883
The question now is, whether the defendAnt is relieved from the responsibility by reason of the stipUlations in the receipt, or, if not wholly absolved, whether it is liable for 1Jlore than $50. It will not be profitablf' to review the authorities which consider the right of common carriers to limit or modify their common law liabilities by notices or specia.l contracts. It is the settled law in the federal courts that common carriers cannot relieve themselves from liability for negligence either by they may, by contraot with notice or by speciaJ contract, the shipper, stipulate for such 8. reasoDable modification of their common law liability as is not inoonsistent with their eBsential duties to the public. They cannot, therefore, exonerate themselves from liability for the negligence of their own agents, but may from the acts or misconduct of persons over whom they have no authority or control, actual or legal. York CO. T. Central R. 3 Wall. 107; R. Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174. The plaintiffs' properly was destroyed by the negligence of 'he railroad company, the agent of the defendant, and the defendant is, therefore, liable, notwithstanding the stipulation against liability for fire. The precise question presented under the stipulation limiting the defendant's liability to $50, in the absence of a statement of the real value in the receipt, was decided in Berry v. Dinsmore, where at nisi prius I held a. stipulation valid. After a more careful consideration of the questio:Q. than I was able to give I am confilmed in the conclusion then reached. The case of Hopkin. v. Wescott, 6 Blatoh. 64, which was not then called to my attention, is a controlling authority in this circuit, and decides that such a limitation is binding upon the shipper. To the same effect are Belger v. Dinsmore, 51 N. Y. 166; Kitkw.nd v. Dinsmore 62 N. Y. 35; Wagntr v. Dins71W1'6, 62 N. Y. 171 And 70 N. Y. 410. The rigU of a carrier to exact fair information as to the value of property confided to his care h'lS always been recognillled, He has the right to insist that, his oompensation be mea.sured by his risk, and, obviously, the degree of care which
