King v. Davis

• Decision Date: 25 January 1905
• Citation: 137 F. 222
• Parties: KING v. DAVIS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

137 F. 222

KING v. DAVIS et al.

United States Circuit Court, W.D. Virginia.

January 25, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

M. F Stiles and Daniel Trigg, for plaintiff.

R. R. Henry and E. M. Fulton, for defendants.

Opinion No. 2.

McDOWELL District Judge.

List of defendants named in the judgment of June 23, 1900:

(1) John Allen.

(2) Cyrus Blankenship.

(3) Reese Davis.

(4) Bazil Dotson.

(5) David Dotson.

(6) Ransom Dotson.

(7) Elijah Estep.

(8) H. M. France.

(9) Montreville Hunt.

(10) Robert Hurley.

(11) Arch. Justus.

(12) Levi Woolford.

(13) S.W. McInturf.

(14) Mary Woolford.

(15) Wm. R. Woolford.

Original service of original notice and declaration valid as to:

(1) John Allen.

(2) Bazil Dotson.

(3) David Dotson.

(4) Ransom Dotson.

(5) Elijah Estep.

(6) H. M. Francis.

(7) Montreville Hunt.

(8) Robert Hurley.

(9) Archibald Justus.

(10) Levi Woolford.

Insufficient as to:

Cyrus Blankenship.

Reese Davis.

Parties defendant now submitting motions:

Same as the first 12 named in judgment.

Parties defendant named in proposed amended return of service of original notice and declaration and amended return of service of notice of July 11, 1898:

Same as first 12 named in the judgment, and, in addition, John Dotson and Jane Mounts.

Some time prior to December 21, 1903, I sent to counsel in this case a written opinion, which was filed on said date, and which, for identification, will hereafter be referred to as opinion No. 1 (137 F. 198), which deals with the questions which had been raised up to that time. On December 21, 1903, the plaintiff filed a written motion, with which were tendered two affidavits by A. J. Manns; praying, in effect, that the return of service of the original declaration and notice and the return of service of the notice of July 11, 1898, might be amended. The two affidavits are returns of service of the above papers, made out in the strictest form. As will appear from the order of December 21, 1903, this motion was not then acted on, and time was allowed for sundry interested persons to file petitions-- some to show why the amendments should not be allowed, and others to show a right to have the judgment of June 23, 1900, opened, or a right to have the writ of possession withheld. Sundry petitions were filed January 18, 1904. On February 15, 1904, a written motion on behalf of the plaintiff to strike out these petitions was filed; and on March 27, 1904, plaintiff tendered provisionally (to be filed if the motion to strike out should be overruled) demurrers to these petitions. On June 23, 1904, the petitioners tendered other petitions, which they asked be substituted for the petitions filed January 18, 1904. As these new petitions merely amplify those of January 18th, no objection was made to the substitution. The motion to strike out and the demurrers are, of course, to be treated as applying to the new petitions. On September 29, 1904, the judgment defendants filed an amended motion to vacate the judgment of 1900, and they will be treated as having filed therewith (although the papers have not yet been sent in) amended pleas No. 3.

(I) AMENDED MOTION TO VACATE JUDGMENT FILED SEPTEMBER 29, 1904.

The questions presented by this amended motion have been, I think, sufficiently discussed in opinion No. 1, except that of the motion to vacate on the grounds set up in the pleas to the scire facias. With this amended motion is an amended plea, No. 3, a sample of which has been sent me. The pleas are now in possession of counsel for defendants in order that these amended pleas may be prepared and verified, but it does not seem necessary to wait for them. The point made is that the pleas No. 3 as thus amended are not inconsistent with pleas No. 2, and that pleas No. 2 are intended as absolute and unequivocal sworn statements that the notice and declaration were never in fact served on these defendants. The defendants in whose behalf this amended motion is made are the 12 defendants named in the judgment of June 23, 1900. I shall for the present leave out of view the rights of Cyrus Blankenship and Reese Davis, as to whom the original return of service is defective. That a return of service of process, valid on its face, cannot, under the circumstances here, be attacked by a plea to the writ of scire facias, is, I think, established by the authorities cited in the former opinion in discussing plea No. 2. In considering the right of a judgment defendant at law to have relief in the federal courts from a judgment rendered at a former term on a false return of service of process, it is advisable to consider, first, the case where the plaintiff shared in the fraud; and, second, where the false return was the act of the process server alone.

(1) Where the Plaintiff at Law Participated in the Fraud.

(A) Under such circumstances, there is, I think, no doubt as to a right to relief from the judgment-- the defendant at law being free from laches-- by bill in equity. No citation of authority is needed to support this proposition, but see Marshall v. Holmes, 141 U.S. 589, at page 596, 12 Sup.Ct. 62, at page 64 (35 L.Ed. 870), and cases hereinafter cited.

(B) Under such circumstances, I think that in the federal courts relief is obtainable only in equity, and cannot be had on motion to vacate made in the court which rendered the judgment after the end of the term at which it was rendered. Undoubtedly many of the state law courts have and exercise this power. In some states this power is expressly conferred by statute. In others it is considered one of the 'inherent powers' of the law courts. But the language used by the Supreme Court in the following cases seems to be capable of no construction other than a denial of such power to the federal law courts. This conclusion seems to follow from what is said in Pickett v. Legerwood, 7 Pet. 144, 8 L.Ed. 638. In stating the grounds for writ of error coram vobis, the only one by possibility to be made applicable to the case at bar is at page 148 of 7 Pet., page 639 of 8 L. Ed., 'Error in process, or through default of the clerk. ' From what is said in later cases (I have not access to Archbold's Practice, from which the quotation is made), it seems probable that this is a misprint (Bronson v. Schulten, 104 U.S. 416, 26 L.Ed. 799; Sibbald v. U.S., 12 Pet. 492, 9 L.Ed. 1169; Bank v. Moss, 6 How. 38, 12 L.Ed. 334) and should have read, 'Error in process through default of the clerk. ' It seems probable, also, that the word 'process,' as there used, means 'proceeding.' But in addition, see Sibbald v. U.S., 12 Pet. 488, 492, 9 L.Ed. 1167; Cameron v. McRoberts, 3 Wheat. 591, 4 L.Ed. 467; Bank v. Moss, 6 How. 31, 38, 39, 12 L.Ed. 331; Hall v. Lanning, 91 U.S. 163, 165, 23 L.Ed. 271; Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797; especially Phillips v. Negley, 117 U.S. 665, 6 Sup.Ct. 901, 29 L.Ed. 1013; Marshall v. Holmes, 141 U.S. 589, 596, 597, 12 Sup.Ct. 62, 35 L.Ed. 870. See, also, Grames v. Hawley (C.C.) 50 F. 319, 320; Craven v. Canadian R. Co. (C.C.) 62 F. 170, 171; Ins. Co. v. Pelzer Co., 76 F. 479, 481, 22 C.C.A. 283; Dick Co. v. Wichelman (C.C.) 106 F. 637; City v. Ins. Co., 107 F. 52, 46 C.C.A. 144; Sanford v. White (C.C.) 132 F. 531, 535.

In Phillips v. Negley, 117 U.S. 665, 6 Sup.Ct. 901, 29 L.Ed. 1013, the law trial court entered an order vacating a judgment rendered at a prior term. The ground for so doing was that, after the appearance of the judgment defendant, the plaintiff, by fraud and deceit, led the defendant not to contest the case on its merits. This action was reversed by the Supreme Court.

In Craven v. Canadian Pac. R. Co. (C.C.) 62 F. 170, a judgment at law in the United States Circuit Court for the district of Massachusetts had at the May term, 1893, been entered in favor of the plaintiff by agreement of counsel. At the June term, 1894, of the same court, a petition to vacate said judgment was filed, setting up the fact that the counsel who agreed to the judgment was not authorized so to do. The court denied the relief prayed for on the ground that it was without power after the end of the term to vacate a judgment.

Insurance Co. v. Pelzer, 76 F. 479, 481, 22 C.C.A. 283, was an action at law in a state court in South Carolina on two insurance policies, in which the verdict was intended to be for the plaintiff for the amount of both policies. By clear mistake the foreman of the jury reported a verdict for the plaintiff for only the amount of one of the policies. Judgment in accordance with this verdict was entered. After the end of the term, the mistake being discovered, a bill in equity in the state court was filed by the plaintiff at law against the insurance company to correct the error. This equity case was removed to the federal court. The lower federal equity court granted the relief as prayed, and on appeal this ruling was affirmed. A question considered by the appellate court was whether or not equity had jurisdiction. In deciding this question in the affirmative, Judge Morris said that the law court, after the end of the term, had no power to correct the mistake, and that there was equity jurisdiction, because the complainant was without relief at law.

Sanford v. White (C.C.) 132 F. 531, 535, was a bill in equity in the federal court to set aside a judgment at law rendered by that court at a former term. The judgment at law had been rendered in favor of the defendant at law in consequence of the fraud of the attorney for the plaintiff at law. The equity court set aside the judgment at law, saying:

'This court is of the opinion and is satisfied, that the complainant had and has a good cause of action against the defendant, and that the judgment against

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