Forty Fort Coal Co. v. Kirkendall

• Decision Date: 01 January 1915
• Docket Number: 762.
• Citation: 233 F. 704
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: FORTY FORT COAL CO. v. KIRKENDALL, Collector of Internal Revenue.

233 F. 704

FORTY FORT COAL CO. v. KIRKENDALL, Collector of Internal Revenue.

No. 762.

United States District Court, M.D. Pennsylvania.

December Term, 1915

H. S Drinker, Jr., of Philadelphia, Pa., and John R. Wilson, of Scranton, Pa., for plaintiff.

R. L Burnett and J. M. McCourt, both of Scranton, Pa., for defendant.

WITMER District Judge.

Suit was instituted by the plaintiff to recover an excise tax assessed by the Internal Revenue Department and paid under protest. Judgment was entered December 24, 1915, for want of an affidavit of defense. This judgment the court is now requested to open, in order that the defendant may defend.

The proceedings in the case leading up to the judgment were not only regular, but the defendant's counsel previously asked for and obtained an extension of time for filing an affidavit of defense. The defendant, the Collector of Internal Revenue, and his department, were advised that unless by a date previous to the entry of judgment an affidavit was forthcoming, judgment would be entered in default thereof. No request was made for a further extension of time to file an affidavit, nor was any effort made to open the judgment until almost five months after it had been entered. Since the entry of judgment four terms, viz January, March, May, and June, have intervened, and yet it is contended that at this late day, without timely effort, this court, in the exercise of a discretionary power over its judgments, should open the judgment herein entered and grant a new trial of the action, so as to permit a defense that might have been interposed at the proper time, but for the unjustified failure and negligence of the defendant and his superiors in interposing a defense which is now suggested, and without the slightest hint that the same was prevented by fraud, mistake, or error.

In support of the proposition that this court has the authority implied in the motion, attention has been directed to the cases of King v. Brooks, 72 Pa. 363, and Ladd v. Stevenson, 112 N.Y. 325, 19 N.E. 842, 8 Am.St.Rep. 748. An effort to distinguish these cases from the one in hand, although the same could likely be successfully accomplished, will not be required, since the proposition is conclusively negatived, in regard to the powers of the courts of the United States, by decision in Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797, and other authorities herein cited. However, it will not be denied that many of the state law courts have and exercise this power. In some states it is expressly conferred by statute; in others, it is considered one of the 'inherent powers' of the law courts. In a state court, where a system has been adopted which amalgamates the equitable and law jurisdiction in one form of action, it is easy to see how relief might be granted on motion in a case like this. It would be a matter of no consequence whether the case be considered one at law or in equity; the form of action, and the court which had jurisdiction would be the same. It would be useless to examine the state decisions on this subject, for neither the practice of the state courts in exercising control over their judgments and administering equitable relief in a summary way, nor the statutes of the states, can determine the actions of the courts of the United States on this subject. 'It is a question of power, and not of procedure. Jurisdiction at law and in equity are as separate in the federal courts as if administered by different tribunals. ' O'Connor v. O'Connor, 142 F. 449, 73 C.C.A. 565. Mr. Justice Miller, speaking for the court upon this point in Bronson v. Schulten, supra, said:

'In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all the courts of the United States, and if there be exceptions in the state courts they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court. But it is a rule equally well established that after the term has ended all final judgments and decrees of the court pass beyond its control; unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and if errors exist, they can only be corrected by such proceeding, by a writ of error or appeal, as may be allowed in a court which, by law, can review the decision. So strongly has this principal been upheld by this court that, while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court.'

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