UNITED STATES tI. WALLACE.
569
UNITED STATES V. WALJ,ACE
et al.
(DistrWt Court, D. South Carolina. June 20, 1891.)
1.
A federal court has jurisdiction to determine whether a judgment rendered by it at a previous term is void. SAME-STATE STATUTE.
AFTER TERM-JURISDICTION.
2.
Code Civil Proc. S. C. § 195, which permits a court at any time within a year to relieve a party from a judgment taken against him mistake, has no application to a judgment of forfeiture on a recognizance in the federal court, where the defendant was represented by an attorney, and the only mistake alleged is that his attorney failed to make defense. Where a person who has been arrested and given bail for his appearance voluntarily appears before the commissioner at tbe preliminary hearing, and enters into recognizance for his appearance at court, the validity of such recognizance is not affected by any irregularities in the proceedings leading to his arrest, since he waived such irregularities by appearing.
3.
CRIMINAL PRACTICE-RECOGNIZANCE-WAIVER.
4.
SAME-FoRFEITURE OF RECOGNIZA:llCE.
'Where the surety on a recognizance not only appears lipon proceedings to forfeit the recognizance, but also obtains a continuance of the cause, so as to suspend the entry of confirmation, he waives notice of the rule to plead.
At Law. Abial Lathrop, Dist. Atty. J. P. K. BrycLn, for defendants. SIMONTON, J. One L. W. Wallace, charged with violating sections 5392,5438, Rev. St., entered into a recognizance with J. C. Jaudon, as his surety, for appearance at October term, 1889, of this court. He fled the jurisdiction. His case was called at the October term, and at the succeeding January term. As he failed to appear, a scire facias on the recognizance was issued against him and Jaudon. The latter made return under oath. In this return, after admitting that he was the surety on the recognizance of the absconding de:endant, and alter stating that he has good ground for believing that Wallace was within reach, and could be arrested, he prayed the proceeding against him be continued, '''with no other desire than that the deponent may have ample time to apprehend the said Wallace, and deliver him into the custody of the marshal." This return, signed by W. J. Gayer, Esq., his attorney, was filed on 5th May, 1890. The continuance was allowed him. The hearing was also postponed at the July term and at the succeeding October term. At the January term, 1891, the rule was made absolute, and the recognizance estreated, and adjudged forfeited. Leave was given to enter judgment and issue execution. The marshal levied under the execution 2d March, 1891. Mr. Gayer again obtained for Jaudon still further delay, on similar hope of arresting Wallace, by suspension of levy until May, 1891; Soon thereaJter Jaudim filed his petition, stating that, by the inadvertence of counsel employed by him, no return was made and filed to the rule to show cause why tbe recognizar'ce should not be forfeited, and the same was adjudgeqby default; that he has a good defensein,lawj prays that hebe allowed to make his return nunc pro tunc,
570
Pi!IDERALBE1"ORTii:R
,vo1:46.
and that, pending the hearing thereof, "the default be set aside, and proceedings stayed." On this a rule toeMw calise why the prayer' thereof be not granted, was served on the district attorney, who, for answer to said rule, says "thaUhilcourt hath hot jurisdiction to set aside the said judgment." The petition,is not accurate in its statements that Jaudon made no retllrn, .and thatjuugmenfby deralllt was taken. He did make return, in effect, admitting his liability, and craving indulgence, so that he coulqarrest Wallace; and after reasonal;Jle (lelay for this' purpose, judgment was taken on the return. No conrtof the United States can revise or alpend its own final decree or judgment for errors of fact or of law after the end of the t('rm in which, such decree or judgment was reqdered, Sibbaldv. U. S., 12 Pet. ,188; Bronson v. Schulten, 104U. S. 417; Phill-ips v. Negley, 117 U. S. 674, 6 Sup. Ct. Rep. 901. Tpepresentmdtion, however, isnot directed to the correction of any error of law or of fact on the part of the court on rendering the judgment. , But ('ounsel has intimated that he can show that the judg[).len( is void. The court has jurisdiction over this question. Black, 'Judgm. § 307. The district attorney will answer the rule; his exception to the jurisdiction being overruled. UPON FILING RETURN BY DISTHICT ATTORNEY.
The dietrict attorney has filed his return. The case seems to have assumed a double aspect. In the petition J:mdon seeks to open the judgment taken against him, flO that he may mnke a defense thereto. He asks the COUl't to do this, because he wasdepri\"ed of this defense by the inadvertence'of his counsel. He argues that, as section 914 of the Revised Statutes declares that the of the United States should conform to' the practice,pleadings, form, and mode of procedure of the· courts of the state in which they are severally established, we should, foHow the,course prescribed in section 195, Code Civil,Proc. S. C., which permits the court at allY time within a year to relieve a party from a judgment, order, 011 other proceedings takp.n against him through, mistake, inadvertence, or excrisable BPghct. Tl:iLis a provision ofa, Code of CivilProceclure"and therefore cannot apply to this,case,which· is in a criminal court. Stllte v. IYildej', 13 S. C. 344, Besides this, thecourts of the United States have no anthority to set. aside, vacate, or modify their final judgments alter the term in which they are rendered;; and this author:ity cannot be conferred on them by the statutes of a state, or the practice of its courts. Bronson v. Schulten, 104 U. S. 410; In re Chateaugay Iron Co., 128 U. S.554, 9 Sup. Ct. Rep. 150; Associat'ion v. Bmory, 131U; -8.120, 9 Sup. Ct. Rep. 755. Even were this. practice adopted in this court, the case, as presented by the petition, would not come within it. In, Clar-k v. Wimberly, 24 S. C. 138, theco11rt confine the relief afforded by this section 195 to parties who', by some mistake, inadvertence,'etc., have lost the opportunity of being present or of beat the trial. Jaudon was represented throul?;hout the ing case by an attorney ,: and in this respeot the petition simply asks that he may uow be permitted to make a defellse which his attorney failed
'1. W
571 ..]
to make.for him. Jaudon; waro regul!1'rlybefore hadjuof him and of the Jlcire facias., "The defense could have been made; indeed the proeeeding--;-' a rule to show cause'-invited him to makeit. ;Failing to do so, the res tilt must be the samclas if he had formnlly made it, and failed." McNair v. Ingraham, 21 S. C. 74; McDowall v. McD(JJ.l7t'XU, Bailey, ]JJq. 330; Dimock v. CQPperCo., 117 U. S. 559, :6 Sup. Ct. 855. So much for tllecase made by the petition. The district attorney made an obje:etion to the petiW?n:, that it did not state th!J grounds of oIf>jectionto the judgment fully; especially that objecti9Il next to bE! noticed. He W/livedthis, howev.er, .at the heiuing. If he had)nsistedupon it, the' o,bjeytion w()uld sustained. The defendant the hearing ;wsists that the is void ab The position iiMhil\: thl\t we'must look the whole record, fr<)m the, of. against Wallace;, that, doing this, we would find: that the recognizancois:voidj that the 'recognizance is the judgment, nlilQ,that the proceedings by way of, scire :facias wereW3ed solely to confirm judgment. There no doubt that a.recognizance is in the nature of a judgment confessed of record. Stqte 4.hrens, 12 Rich. Law, 493, and that the scire facias, by its own language, is to confirm it. I have some doubt whether it is not too late for Jaudon to raise this question. But he has the Penefit6f the doubt. Inspecting the records, it appears that Wallace was arrested on 4th September, 1889, on a warrant bearing the same date/l,t{) whieh is attached an alfidavit of H. W. Hendricks "that he has reason to believe, and does verily believe." Whbther or not the cOh1missioner had any other' affidavit in his possession does not appear. That Wallace when arrested gave bail fl.,H' his appearanoe before the commissioner on 10th September, 1889. That subsequently he did appear before the commissioner on 10th September, 1889, and was present at the preliminary hearing. That the commissioner examined 23 witnesses l and that, as the result of the examination. he sent the case up, and that'WaUiwe then and there entered into the as surety. That Wallace made default, havrecugnizance, with ing departed the state. This record shows that Wallace never was in jail, and that he was released from custody as soon as arrested.Assuming, for this case, that the warrant was void and the original arrest illegal, when Wallace was discharged he was free. Yet he voluntarily went before the commissioner six days afterwards, heard the witness examined, and afterwards signed the recognizance, with Jaudon as his surety. Had he resisted or disputed the arrest in the first instance, or, being in custody, had then entered into recognizance, or had he disregarded his bail to appear for preliminary examination, or, had he been in custody, and had moved to quash the warrant, or applied lor a habeas corpus, the result may have been different. U. S. v. Shepard, 1 Abb. (U. S.) 434. He, in my opinion, wai ved all objection. Indeed, if there had been no affidavit or complaint whatever, and the accused going voluntarily before the officer, harl given bail for his appearunce to answer the indictment, it would have been good. The giving of the undertaking thus voluntarily would have been a complete waiver of complaint,
572
ri'DERAL REPoRtER ,vbl. 46.,'
deposition, dause,:ahdof all irregularities in the case prior to giving of the bail. U. S. v. Eldredge;CUtah,) 13 Pac. Rep. 677. See, also, City oJ JunctiOn City v. Keeffe, (Kan.) 19 Pac. Rep'. 735; Ard v. State, (Ind.) 16 N. E. Rep. 504; State v. Tennison, (Kan.) 18 Pac. Rep. 948. The next objection is t6 the scireJaciasj that notice of the rule to plead to the flmre Jacias had not beetlserved upon Jaudon after he appeared. Examining Jaudon's feturntothe sci1'e Jacias, it is something more thlio an appearance,..:...-it is an admission of responsibility, and an application to the grace 'of the court for time within which to surrender his absconding principal. He does, in this connection, ask for a continuance, and such continuance was granted on his motion; but this was not a continuance of the trial, but a continuance of the cause, so as to suspend the entry of confirmation of jUdgment. There is a.n error in the order upon the scire Jacias. It provides that judgment be entered. As we have seen, the recognizance itself is a judgment. The word should be confirmed. Let this be substituted. The motion is dismissed.
WELLS
v.
TATUM.
(Circuit Court, S. D. Ohio, W. D. June 22, 1891.)
PATENTS FOR INVE:'<"TIONS-PATENTABLE NOVELTy-PAPER FILES.
In letters patent No. 3S6,6i4, issued July 24, 1888, to Arthur J. Wells, claIm 1 is for '.'a paper file consisting of a base adapted to lie upon adesk or table, and formed with a series of perforations and adjustable partitions, provided with steps removably fitting into the perforatod base." Claim 2 is for "the combination of the base, A, and perforated plate, DJ secured to Its top, and the adjustable partitions, B, having the steps, a, c, adaptea to enter the perforations." HeLd, that the patent is invalid for want of novelty, In letters patent 386,675 isslled July 24,1888. to Arthur J. Wells, the claim is for "the combination' of the z oase/A, having rabbets, a, extending leng-thwise in the outflr edges thereof, rods, b, detachably secured to the base within the rabbets, and slides. C,having depending feet, C, and eyes, d, through which the rods pass. n Held, that this patent is likewise void for want of novelty. .
SAME,
In Equity. Suit for of patents Nos. 386,674 and 386,675, for paper or bill file, issued July 24;!1888, to Arthur J'. Wells, and by him assigned to complainant August 10, 1888. The articlede:>crihed and 'claimed in 386,674 is a knock-down porta,. ble paper or, bill file, oia base having a metal plate on its upper l::lurlace,provided with perJorations, extending in series at intervals throughout its length, and partitions, preferably of wire, having steps or these perforations, whi¢h serve as seats or feet removably fitting sockets, and support the partitions in their operative position. · The construction specified permits the file to bet!jken apart and shipVed in a "knock-dowJ;l "condition, and then the parts may read-