Mellon v. St. Louis Union Trust Co.

• Decision Date: 26 February 1917
• Docket Number: 4402.
• Citation: 240 F. 359
• Parties: MELLON v. ST. LOUIS UNION TRUST CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F. 359

MELLON v. ST. LOUIS UNION TRUST CO. et al.

No. 4402.

United States Court of Appeals, Eighth Circuit.

February 26, 1917

H. N Boardman, of Oklahoma City, Okl., for the motion.

J. H Everest and R. M. Campbell, both of Oklahoma City, Okl opposed.

Before SANBORN, Circuit Judge, and TRIEBER and REED, District Judges.

TRIEBER District Judge.

The petitioner asks for a modification of the decree rendered by this court at the May term, 1915 (225 F. 693, 140 C.C.A 567), so far as it adjudges that, upon the payment by Mrs. Mellon of all liens declared by the decree to be superior to her claims, she should become the absolute owner of the lease and building, free from the terms of the lease, and the claim of all parties to the action. This petition was filed at the December term, 1916.

The petitioner bases her claim upon two grounds: First. That the court may, at any time, after the term at which the decree was rendered has expired, amend its decree by a nunc pro tunc order. Second. That this part of the opinion of the court was absolutely void because not within the issues raised by the pleadings.

1. As to the first proposition, the authorities cited by counsel for the petitioner are inapplicable. All they hold is that the court may, at any time after the expiration of the term, amend its decree by a nunc pro tunc order, to conform to what was actually determined by the court, but which, by an oversight, or an error of the clerk in entering it, was omitted or erroneously stated. In other words, a nunc pro tunc order is made for the purpose of making the record speak the truth and show what was actually determined by the court. But this power cannot be exercised to change or modify the decree, or in any wise void the force of any part of the judgment or decree as originally intended and pronounced. Hickman v. Fort Scott, 141 U.S. 415, 418, 12 Sup.Ct. 9, 35 L.Ed. 775; St. Louis & N.A.R.R. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752; 1 Black on Judgments (2d Ed.) Sec. 516; 23 Cyc. 873.

2. That, ordinarily, a court loses all control over its judgment after the expiration of the term at which it was rendered, is too well settled to require the citation of authorities. Thomas v. American Freehold Land & Mortgage Co. (C.C.) 47 F. 550, 12 L.R.A. 681, is relied on by counsel for petitioner as in point. That was an action at law, and the decision of the court was based entirely upon the statutes of the state of Georgia, which the court held controlled, by virtue of the Conformity Act of 1872 (section 914, Rev. Stat.; Comp. St. 1913, Sec. 1537). But in this the learned judge delivering the opinion of the court in that case was clearly in error. United States v. Mayer, 235 U.S. 55, 69, 35 Sup.Ct. 16, 59 L.Ed. 129; Wellman v. Bethea (D.C.) 213 F. 367.

The main ground upon which counsel rely is that this part of the decree was absolutely void, as it was not within the issues raised by the pleadings; that for this reason it is subject to collateral attack, and, this being the case, the court has not only the power, but it is its duty to modify or set it aside, regardless of terms. Numerous authorities are cited to sustain this proposition. It may be conceded that, if that part of the decree was absolutely void and therefore subject to collateral attack, the court has the power to set it aside at any time, even after the expiration of the term.

But was the court without jurisdiction to render that part of the decree? It has been uniformly held by the Supreme Court that although the national courts are courts of limited jurisdiction, and the complaint must contain the allegations necessary to show the jurisdiction of the court, a judgment rendered upon a complaint failing to allege the necessary jurisdictional facts is not void, and cannot be attacked collaterally, but is merely erroneous, and can be corrected by appeal only. Skillern v. May, 6 Cranch, 267, 3 L.Ed. 220; McCormick v. Sullivant, 10 Wheat. 192, 199, 6 L.Ed. 300; Evers v. Watson, 156 U.S. 527, 15 Sup.Ct. 430, 39 L.Ed. 520; Dowell v. Applegate, 152 U.S. 327, 14 Sup.Ct. 611, 38 L.Ed. 463; Cutler v. Huston, 158 U.S. 423, 15 Sup.Ct. 868, 39 L.Ed. 1040. It has also been uniformly held that a judgment or decree rendered by a Circuit or District Court after it had erroneously refused to remand the case to the state court, from which it had been removed, is not void, but must be given effect by all courts, until reversed by the appellate court. Chesapeake & Ohio R. Co. v. McCabe, 213 U.S. 207, 220 29 Sup.Ct. 430, 53 L.Ed. 765; In re Metropolitan Trust Co., 218 U.S. 312, 321, 31 Sup.Ct. 18, 54 L.Ed. 1051. In the Metropolitan Trust Company Case, the facts were that the Circuit Court overruled a motion to remand that case, which had been removed from a state court. Thereafter a final decree was rendered in that case in favor of the trust company, and also in favor of the other defendants. An appeal was taken from the decree in favor of all the defendants except the Trust Company, and the Circuit Court of Appeals upon that appeal held that the Circuit Court had erred in overruling the motion to remand it to the state court. Thereupon the plaintiff applied to the Circuit Court to set aside the decree in favor of the Trust Company, which was granted; but the Supreme Court granted a mandamus to vacate the order of the Circuit Court setting aside the decree, holding that, the term at which the decree in favor of the Metropolitan Trust Company was rendered having expired, the court was without jurisdiction to set it aside; the judgment overruling the motion to remand having been merely erroneous and not void.

In the cross-bill filed by Mrs. Mellon against the petitioner, the lease, which was the basis of her cross-bill and made a part thereof, provided:

'During the demised term no mechanics' liens for improvements shall be put upon the demised premises, and in the event liens should be filed thereon, the lessee was to pay the same off within thirty days after final judgment, and if she failed to do so, the lessor should have the right to pay the same off, and the amount thus paid should be added to the rent, and if the default in the payment of such sums and the rent continues for three months after they become due, the lessor has the option to declare the lease terminated, and if the forfeiture is on account of any mechanics' liens, the improvements shall also be forfeited without compensation therefor.'

It was charged that these provisions of the lease had all been violated, and, while the specific relief asked was for a foreclosure of her liens, the bill also...