Graham v. Swayne

• Decision Date: 31 May 1901
• Docket Number: 981.
• Citation: 109 F. 366
• Parties: GRAHAM et al. v. SWAYNE.
• Court: U.S. Court of Appeals — Fifth Circuit

109 F. 366

GRAHAM et al. v. SWAYNE.

No. 981.

United States Court of Appeals, Fifth Circuit.

May 31, 1901

John G Reardon, Solicitor for Defendants.'

'H L. Anderson, in Person.'

W. A Hamilton and John G. Reardon, for petitioners.

O. V Greene, for respondent.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge, after stating the case as above, .

Rule 88 provides: 'No rehearing shall be granted after the term at which the final decree of court shall have been entered and recorded, if an appeal lies to the supreme court. ' If a petition or motion for rehearing or for opening the decree is filed in season, and entertained by the court, then the decree, although entered in form, does not discharge the parties from their attendance in the cause. They are bound to follow the petition thus pending to the next term. Smelting Co. v. Billings, 150 U.S. 31, 14 Sup.Ct. 4 37 L.Ed. 986; Goddard v. Ordway, 101 U.S. 745, 25 L.Ed. 1040. To be filed in season, it must be filed during the term at which the decree sought to be opened is rendered; and, besides this, the record must show in some way that it was brought to the attention of the court. The prescription of rule 88 must be construed to mean that a rehearing cannot be granted after the lapse of the term, unless application is made therefor during the term; and, being entertained, the decree is thereby prevented from passing beyond the control of the court. Smelting Co. v. Billings, supra. The fact of the application or motion to reopen the decree and grant a new hearing may be made to appear by an entry on the minutes of the court of the doings of the court for the term. 'A paper may be filed in the proper office, and yet not be brought to the attention of the court while sitting in judgment; but, when what it calls for appears on the minutes of actual proceedings, it must be presumed that the court, in some form, gave it judicial attention, and that it was presented in some regular way. ' Goddard v. Ordway, supra. In this case the return of the respondent shows that the motion filed on September 4, 1899, 'was never presented to the respondent as judge, nor was the said motion entertained in any way by the said court, during the term in which the said decree was entered, which expired on the 26th day of January, 1900. ' In reference to judgments pro confesso, the equity rules provide that 'such decree rendered shall be deemed...