Phillips v. Negley

• Decision Date: 12 April 1886
• Parties: PHILLIPS and another, Ex'rs, etc., v. NEGLEY. Filed
• Court: U.S. Supreme Court

6 S.Ct. 901

117 U.S. 665

29 L.Ed. 1013

PHILLIPS and another, Ex'rs, etc., v. NEGLEY.

Filed April 12, 1886.

The facts material to the determination of the questions arising in this cause are as follows:

Philip Phillips sued the defendant, Negley, in the supreme court of the District of Columbia, on August 29, 1874, to recover $4,368, alleged to be due upon a certain order in writing, signed by Simon Witkowski and by the defendant, as attorney for Mrs. Witkowski, addressed to Charles F. Peck and Charles E. Hovey, and by them accepted, payable out of money received by them from the United States, arising from a judgment in the court of claims in favor of Witkowski. A copy of the order was attached to the declaration. Process was served personally on the defendant on the same day. On October 26, 1874, Negley filed an affidavit of defense denying his liability on the ground that the order was signed by him only as the agent and on behalf of Mrs. Witkowski; alleging that the plaintiff was not in fact holder of the same for value; and denying notice of non-payment, and any indebtedness whatever. On May 3, 1877, the plaintiff joined issue on these pleas; and on April 3, 1879, the defendant not appearing, a jury was called, who found a verdict for the plaintiff for the sum demanded with interest, and judgment was rendered thereon. On September 4, 1882, the defendant filed his motion 'to vacate the judgment and set aside the verdict entered herein ex parte on the third day of April, 1879, because of irregularity, surprise, fraud, and deceit in the procurement of said verdict and judgment, and the negligence of defendant's attorney, the particulars of which appear in the affidavit of the defendant filed herewith and in the record and papers on file in this case.' In support of this motion the affidavits of the defendant Negley and of Richard Harrington were filed. In that of the defendant he denies his personal liability on the order, and says that when served with process in the cause he was temporarily in Washington, being at the time and always since a resident of Pittsburgh; that he employed Harrington as his attorney, and filed his affidavit of defense, and received no further notice or information in reference to the suit from the fall of 1874 until about July 26, 1882, when he was served with process in a suit brought on the judgment in Allegheny county, Pennsylvania; that after he filed his affidavit of defense in the original suit, that is, from October 26, 1874, the plaintiff 'seemed to have abandoned the case, and thereby to mislead affiant's attorney;' that the plaintiff took no notice of the plea until May 3, 1877, when he joined issue, but gave no notice of trial; that in the mean time, without defendant's knowledge, Harrington had removed from the city of Washington, as was well known to the plaintiff and his counsel, leaving the defendant without an attorney; that on April 3, 1879, without any notice to the defendant, the case was called for trial, and in his absence the plaintiff, with knowledge that the defendant was ignorant of the proceedings, called for a jury, and without other proof than the production of the order sued on procured the verdict and obtained the judgment thereon, and that by reason of the premises the said proceedings and judgment are a fraud upon him. Harrington states in his affidavit that he understood that the plaintiff had abandoned his suit, and that he believes he so informed his client, the defendant, and that he, Harrington, removed from the District of Columbia in March, 1875, and has not since resided or practiced law therein, and that on such removal he undertook to notify all his clients, but having considered this cause at an end by reason of the plaintiff's failure to join issue or take action on the plea therein, as required by the rules of the court, he did not notify the defendant, and that the plaintiff and his attorney well knew when said cause was set down for trial that the affiant had removed to Dover, Delaware. Notice of this motion was served upon the plaintiff in the judgment, who appeared and filed counter-affidavits of himself and of his attorney, William F. Mattingly. The latter states that he mailed notices of the trial of the issues in the action for the May term, 1877, in due time, to what he understood to be the post-office address both of Harrington and of the defendant, and that the cause stood for trial from thence until the January term, 1879. The plaintiff, in his affidavit, denies all charges of fraud, and says that on the trial of the action the verdict was taken upon testimony showing that, after the delivery to the plaintiff of the order sued on, the defendant obtained possession of the fund out of which the same was to have been paid, and failed to make the proper application of the same. On December 2, 1882, the supreme court of the district, holding a special term and circuit court, entered the following order: 'Philip Phillips, Pl'ff, vs. James S. Negley, Def't. (At Law. No. 12,890.)

'This cause coming on to be heard upon the defendant's motion to vacate the judgment and set aside the verdict entered herein ex parte on the third day of April, 1879, because of irregularity, surprise, fraud, and deceit, and the same having been argued by counsel on both sides and duly considered, it is considered by the court that said verdict and judgment be and the same is hereby vacated, set aside, and for nothing held, and a new trial granted.'

From this order an appeal was taken to the court in general term, December 9, 1882, and on February 15, 1883, the defendant moved the court to dismiss the appeal, on the ground that an appeal would not lie from such an order made at the circuit court or special term. The proceedings in general term resulted in the following order, entered February 19, 1883 'Now come here as well the plaintiff as the defendant, by their respective attorneys, whereupon, because it appears to the court here that there is no error in the record and proceedings of the special term, therefore the court remands the case to the special term, there to be proceeded with as if no appeal had been taken from its order of December 2, 1882, which appeal is hereby dismissed, with costs, to be taxed by the clerks. The plaintiff gives notice that he will prosecute a writ of error, and the penalty of his supersedeas bond is fixed at $500.'

To reverse these proceedings and orders this writ of error has been prosecuted.

John Selden and W. Hallett Phillips, for plaintiffs in error.

J. S. Edwards and Job Barnard, for defendant in error.

[Argument of Counsel from pages 669-671 intentionally omitted]

MATTHEWS, J.

There appears to be an ambiguity, if not an inconsistency, in the terms of the order or judgment of the general term. It affirms that there is no error in the record and proceedings of the special term, but does not affirm its order which was appealed from, but in fact dismisses the appeal, as though it had no jurisdiction either to affirm or reverse the order brought up by the appeal. Interpreting the judgment of the general term by the opinion of the learned judge who spoke for the court (Phillips v. Negley, 2 Mackey, 236) we must infer that it was intended to dismiss the appeal for want of jurisdiction to entertain it, on the ground that the order of the special term, vacating its own judgment rendered at a previous term, was not only within the power of that court, but was so purely discretionary that it was not reviewable in an appellate court. The same consideration is urged upon us as a ground for dismissing the present writ of error for want of jurisdiction in this court, it being alleged that the order of the supreme court of the district at special term is one not only within the discretion of that court, but that, as it merely vacates a judgment for the purpose of a new trial upon the merits of the original action, it is not a final judgment, and therefore not reviewable on writ of error. If properly considered the order in question was an order in the cause which the court had power to make at the term when it was made, the consequence may be admitted, that no appellate tribunal has jurisdiction to question its propriety, for if it had power to make it, and it was a power limited only by the discretion of the court making it, as in other cases of orders setting aside judgments at the same term at which they were rendered and granting new trials, there would be nothing left for the jurisdiction of an appellate court to act upon. The vacating of a judgment and granting a new trial, in the exercise of an acknowledged jurisdiction, leaves no judgment in force to be reviewed. If, on the other hand, the order made was made without jurisdiction on the part of the court making it, then it is a proceeding which must be the subject of review by an appellate court. The question of the jurisdiction of this court to entertain the present writ of error, therefore, necessarily involves the jurisdiction of the supreme court of the district, both at special and general term, and the nature and effect of the order brought into review, so that the question of our jurisdiction is necessarily included in the question of the validity of the proceeding itself.

The legal proposition involved in the judgment complained of, and necessary to maintain it, is that the supreme court of this district at special term has the same discretionary power over its judgments rendered at a previous term of the court, without any motion or other proceeding to that end made or taken at that term, to set them aside and grant new trials of the actions in which they were rendered, which it has over judgments when such proceedings are taken during the term at which they were rendered, and that this being true, the proceeding and order of the court, in the exercise of this jurisdiction and discretion, cannot be reviewed on appeal or writ of error. This...