106 F.2d 949 (3rd Cir. 1939), 7028, Publicker v. Shallcross

Docket Nº:7028.
Citation:106 F.2d 949
Party Name:PUBLICKER v. SHALLCROSS et al.
Case Date:October 06, 1939
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 949

106 F.2d 949 (3rd Cir. 1939)

PUBLICKER

v.

SHALLCROSS et al.

No. 7028.

United States Court of Appeals, Third Circuit.

October 6, 1939

Harry Shapiro, of Philadelphia, Pa., for appellant.

Morris Wolf and Edward A. G. Porter, both of Philadelphia, Pa. (Wolf, Block, Schorr & Solis-Cohen and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., of counsel), for appellees.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The first time this case came before us, counsel for appellant-respondent demurred to and so technically admitted the truth of the facts alleged by petitioner-appellees. We understood that he did so purely for the purpose of testing the law. We felt that the cause might be more justly decided if all the facts were known, and remanded it to the District Court with direction to file an answer and proceed to hearing on the merits, Publicker v. Shallcross, 3 Cir., 103 F.2d 596, 597. Appellant's new counsel evidently did not share our feeling. His answer again in substance admits the crucial averments of the petition (by the device of styling them as immaterial and not requiring an answer). See Rules of Civil Procedure for the District Courts of the United States, Rule 8(d), 28 U.S.C.A.following section 723c. No further facts are added. Thanks to this cooperative gesture on the part of counsel, we are now back where we started-- testing a pure question of law.

Appellant's position seems to be that, in his circumstance, wickedness, as well as virtue, is its own reward. He, as the petition states, fraudulently induced the appellees (the receiver for the defunct Philadelphia Company for Guaranteeing Mortgagees), two skeptical bondholders, a special master, and the learned district court itself, to believe that his total assets were $8,500. On that basis he compromised an $850,000 claim of the receivers against him for one cent on the dollar. In truth, however, he had assets worth $230,000. Nevertheless, he is convinced that the order authorizing the compromise cannot be vacated after a lapse of two years, simply because he perjuriously concealed his true financial condition at a hearing before the master to whom the matter of authorizing the compromise was referred.

All concerned exhibit, we think, some confusion as to the exact ground for this, to those not initiated in the mysteries of the law, somewhat startling proposition. They talk in the same breath of the rule in United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, and in Delaware, L. & W.R. Co. v. Rellstab, 276 U.S. 1, 48 S.Ct. 203, 72 L.Ed. 439, whereas the ratio decidendi of the two lines of decisions is entirely distinct, the only similarity lying in the coincidence of perjury. The class of cases represented by the latter adjudication

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depend upon the technical lack of legal power of courts after the expiration of their own technical time divisions, In re Metropolitan Trust Co., 218 U.S. 312, 31 S.Ct. 18, 54 L.Ed. 1051; Sibbald v. United States, 12 Pet. 488, 9 L.Ed. 1167; Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797; Phillips v. Negley, 117 U.S. 665, 674, 6 S.Ct. 901, 29 L.Ed. 1013; 34 C.J. 210-219. The rule in United States v. Throckmorton, above cited, on the other hand, acknowledges the power to act beyond the term (under its facts, 60 terms had gone by) but gives other reasons with which we happen to disagree-- but still reasons why such power should not be exercised. Here, as in United States v. Throckmorton, above cited, there is no suggestion of a legal remedy. On the contrary, the relief is, and had to be, asked for by petition on the equity side of the court. The appellant-respondent himself seems to realize this because his brief indicates his principal reliance on United States v. Throckmorton, above cited.

We do not consider ourselves bound by that case for two, as we think, excellent reasons. We do not believe it applies to our circumstance and we do not believe it is the law of the Supreme Court today. That august body gave full validity to two ancient Latin maxims, interest rei publicae ut sit finis litium and nemo debet bis vexari pro una et eadam causa. Their doing so has been discussed and criticized in 22 Harvard Law Review 600 (note) and in 49 Harvard Law Review 600 (note) and in 49 Harvard Law Review 327 (note). In the first, the learned commentator says:

'The reason that equity relieves against judgments secured through accident or fraud is to prevent the retention of an advantage unfairly or unconscionably gained. Assuming that the injured party was not guilty of laches, the same reason applies to intrinsic as well as extrinsic fraud, and hence to perjury. Two main objections urged against equitable interference because of perjury are, first, that, as the case was none the less tried on its merits despite the perjury, to permit a reexamination would result in flooding the courts with litigation; second, if judgments may be impeached on the ground of perjury, each defeated party may in turn charge the other with perjury in the last...

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