Delaware, L. & WR Co. v. Rellstab

• Citation: 15 F.2d 137
• Decision Date: 25 September 1926
• Docket Number: No. 3379.,3379.
• Parties: DELAWARE, L. & W. R. CO. v. RELLSTAB, District Judge, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

15 F.2d 137 (1926)

DELAWARE, L. & W. R. CO. v. RELLSTAB, District Judge, et al.

No. 3379.

Circuit Court of Appeals, Third Circuit.

September 25, 1926.

Frederic B. Scott, of New York City, for petitioner.

Harry Kalisch, of Newark, N. J., for respondents.

Before WOOLLEY and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This is a petition for mandamus to direct Hon. John Rellstab to reinstate a judgment entered in the United States District Court on June 20, 1923, which was set aside by him on May 9, 1925, after the expiration of a number of terms of court without extending the term in which the judgment was entered.

On December 9, 1920, David Ginsberg, individually, as next friend of Harry Ginsberg, and as administrator ad prosequendum of the estate of George Ginsberg deceased, brought an action against the petitioner the Delaware, Lackawanna & Western Railroad Company, to recover damages for injuries received by him and his two sons, Harry Ginsberg and George Ginsberg, deceased, through its alleged negligent operation of one of its trains. David Ginsberg was driving a truck in Morris county, N. J., on the road leading from Wharton to Kenvil. The truck was struck at a point where the road crosses the track of the petitioner, and the father and one son, Harry, were seriously, and the other son, George, was fatally, injured. Suit was begun in the Supreme Court of New Jersey in the Morris circuit, and was removed on the ground of diversity of citizenship to the United States District Court for the District of New Jersey.

The cause was tried on December 2, 1921, and a verdict was rendered for plaintiff. At this trial Addie H. J. Ridner and William N. Ridner, her husband testified on behalf of the plaintiff. The jury rendered a verdict for him and against the defendant. Some time after the entry of judgment, the Ridners stated, under oath, that their testimony at this trial was false and perjured. Thereupon the judgment was set aside and a new trial ordered. The second trial was held on March 3, 1923, and at this trial they testified, in accordance with their statement, that their former testimony was false; that they were about 50 or 60 feet from the crossing when the collision took place; and that a whistle was blown and a bell was rung before the train reached the crossing. The jury rendered a verdict for the defendant railroad company and against the plaintiff, on which judgment was entered on June 21, 1923. This judgment was brought to this court by writ of error of plaintiff. It was affirmed, and the mandate from this court was filed in the District Court on March 21, 1924.

The April term of the District Court of 1923, in which the judgment was entered, expired on the opening of the September term on Tuesday, September 11, 1923. The January term of 1924 of that court, in which the mandate from this court was filed in that court, expired Tuesday, April 8, 1924. Neither of the terms of the District Court ending September 11, 1923, and April 8, 1924, was extended by stipulation, court order, or otherwise.

On January 12, 1925, William Ridner signed an affidavit in which he said that he was not at or near the crossing when the collision occurred, as he had testified, and that he did not know of the accident until 8 o'clock in the evening of the afternoon on which it occurred, and that he was told of it by a neighbor. An application based on this affidavit was made to Judge Rellstab for a rule to show cause why this last judgment should not be set aside. He allowed the rule on April 28, 1925, and on May 9, 1925, after hearing testimony in open court, he made it absolute and set aside the judgment on the ground that it was obtained through fraud. Thereupon counsel for the defendant railroad company petitioned this court for a writ of mandamus directing Judge Rellstab to reinstate the judgment.

Two questions arise: First, whether or not we have jurisdiction to issue the writ of mandamus; and, second, whether or not the District Court lost jurisdiction over the judgment with the expiration of the term in which it was entered.

The Circuit Court of Appeals is a statutory court, and its authority to grant writs must be found in the statute, if it exists. Section 12 of the act creating the Circuit Court of Appeals (26 Stat. 826, 828) provides that it shall have the powers specified in section 716 of the...