In re Ives

• Decision Date: 01 August 1901
• Citation: 111 F. 495
• Parties: In re IVES et al.
• Court: U.S. District Court — Eastern District of Michigan

111 F. 495

In re IVES et al.

United States District Court, E.D. Michigan.

August 1, 1901

Elliott G. Stevenson and Leo M. Butzel, for petitioners

Henry A. Harmon and T. A. E. Weadock, for respondents.

SWAN District Judge.

The adjudication of bankruptcy in this cause was made September 11, 1900, upon voluntary petition duly verified and signed by Butler Ives and Albert Ives, Jr., and by Albert by his attorney in fact, Mary Ives Cowlan. Albert Ives died March 20, 1901. The petition in this cause was filed June 7, 1901 and alleges that at the time of the adjudication Albert Ives one of the bankrupts, was incompetent to transact business and had been for some time before the filing of the petition that his name was signed thereto by a person who represented herself to be the attorney in fact of said Albert Ives; that said Albert Ives never executed any power of attorney, or conferred any authority upon any person to sign said petition; and that a fraud was committed upon the court in applying for and obtaining an adjudication of the firm of Albert Ives & Sons, which said firm was composed of said bankrupts. The petitioners, Feldheim and Butzel, represent that they are creditors of said bankrupts, and were such prior to and at the time of the adjudication had in this cause, and that they have a right to intervene for their interest, and are entitled to have said adjudication vacated and set aside. To this petition the respondents, Henry A. Harmon, trustee of the bankrupts, and Albert Ives, Jr., administrator of the estate of Albert Ives, have demurred, and have filed a plea to the allegation of the petition denying the existence of the power of attorney.

The verified plea sets forth the original power of attorney given by said Albert Ives, which in express terms authorizes the signature by the attorney in fact of any petition which might be filed in behalf of said firm of Albert Ives & Sons in proceedings in bankruptcy.

The first ground of the demurrer challenges the jurisdiction of the court to grant the relief prayed, because several terms of the district court had elapsed before the filing of said petition. This ground of the demurrer is well taken. In Phillips v. Negley, 117 U.S. 673, 6 Sup.Ct. 904, 29 L.Ed. 1014, Mr. Justice Miller, who, says:

'It is a general rule of the law that all the judgments, decrees, or other orders of the court, 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. * * * So strongly has this principle 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 ground that the case has passed beyond the control of the court.'

In Bank v. Moss, 6 How. 31, 12 L.Ed. 331, it was held that the circuit court could not set aside a judgment of a former term on motion, even for want of jurisdiction. See, also, U.S. v. The Glamorgan, 2 Curt. 236, Fed. Cas. No. 15,214.

The present bankruptcy act expressly authorizes the revocation of a discharge in bankruptcy for fraud, but it contains no provision which modifies in any degree the rule of law stated in the cases cited, which rule is applicable to all federal courts in all branches of jurisprudence which they administer. The express authority to revoke a discharge for fraud, and the absence of any provision authorizing the court to vacate an adjudication after the lapse of the term, is a strong implication that it was not the intention of the bankruptcy act to vest the...