Schofield v. Horse Springs Cattle Co.

• Decision Date: 03 January 1895
• Docket Number: 314.
• Citation: 65 F. 433
• Parties: SCHOFIELD v. HORSE SPRINGS CATTLE CO. et al.
• Court: U.S. District Court — District of Montana

65 F. 433

SCHOFIELD v. HORSE SPRINGS CATTLE CO. et al.

No. 314.

United States Circuit Court, D. Montana.

January 3, 1895

Toole &amp Wallace, for complainant.

Sanders & Sanders, for defendants.

KNOWLES District Judge.

This case is presented to the court on a motion to set aside a default and decree entered pro confesso therein. The bill of complaint was filed March 1, 1894. On the 5th day of April said year, a subpoena was duly issued commanding the said Horse Springs Cattle Comapny, W. B. Slaughter, and D. C. Kyle to appear on the 7th day of May, 1894, and answer said bill. This subpoena was served on the defendant Kyle on the 10th day of said April, 1894. On the 5th day of April, 1894, an affidavit was filed showing the nonresidence of the defendants Slaughter and the Horse Springs Cattle Comapny. On the same date the court made an order requiring the said defendants Slaughter and the Horse Springs Cattle Company to appear, plead, answer, or demur on the said 7th day of Amy 1894, and that this order be served, if practicable, upon said defendant the Horse Springs Cattle Company by the United States marshal of the district of New Mexico, and upon the said Slaughter by the marshal of the state of Kansas, that state appearing to be his residence. It appears from the return on this order that the marshal of New Mexico served the order personally on the defendant Slaughter in that territory on the 23d day of April, said year, and that the Horse Springs Cattle Comapny accepted service of the same on the 27th day of that month. On the 29th day of May 1894, a default, on motion of counsel for plaintiff, was entered against all of the defendants. On the 29th day of June, 1894, a decree pro confesso was entered against all the defendants. On the 12th day of July, said year, the defendants Kyle and Slaughter came into court, and filed their motion to set aside the default and decree in this case. This motion is based upon the ground that defendants have a defense in said case upon the merits thereof, which, by accident, mistake, inadvertence, or excusable neglect, they were prevented from making within the time prescribed therefor by law and the rules of the court. In support of this the affidavits of D. C. Kyle and W. F. Sanders were filed.

The only point in connection with these affidavits which I will refer to is that part of the same which mentions the defense of the said defendants. The defendant Kyle states in his affidavit as follows:

'And affiant says, as to a portion of the cattle mentioned in the complaint herein, the said bank did not, and the said receiver did not, have, nor has either of them, a lien thereon, nor were nor are they the owners thereof, but the same are free from the mortgages mentioned in the said complaint, and are the property of this affiant and the said W. B. Slaughter; * * * that he had fully stated his case to his said counsel in New Mexico, and to his said counsel in Montana, and is advised by them and believes that upon the merits he, as well as said Slaughter, has a valid defense.'

In his affidavit, W. F. Sanders states:

'That the said Kyle desired to and did employ affiant and his said partner to make a defense in said action, and has stated, as affiant believes, so fully as he can, in the absence of papers which are in New Mexico, or absent from Helena, the merits of his case; and as to each of the said cases affiant believes the said defendants, and each of them, have a defense upon the merits thereof, which by reason of delays incident to the mails, consequent upon strikes and otherwise, they did not make prior to the time of entry of default herein.'

This case is further complicated from the fact that on the 3d day of July, 1894, this court adjourned to the 12th of said month. That on said last-named date, by a telegram in writing, the judge holding said court ordered said court adjourned until the 19th day of said month. On that day the said judge telephoned to the clerk of said court an order that said court be adjourned until the 6th day of August following. On the said 6th day of August the aforesaid motion was called to the attention of the court and argued. Owing to the doubt as to whether the court was legally in session, a few days subsequent it was adjourned. It is matter of some importance in this case to know whether or not the court was in session on the 6th day of August. There are several decisions of the United States supreme court that hold that a federal court cannot set aside or vacate a judgment entered at one term at a subsequent term; that, as long as a term lasts, a court can modify or vacate a judgment or decree entered at that term, but as soon as the term ends the power of a court over its decrees entered during the continuance thereof terminates. Cameron v. McRoberts, 3 Wheat. 591; McMicken v. Perrin, 18 How. 507. If, however, a motion is made to vacate a judgment or decree at the same term at which it was rendered, and the motion is presented to the court, and submitted, and taken under advisement, the court at a subsequent term, in ruling upon this motion, may vacate and set aside a judgment or decree. Goddard v. Ordway, 101 U.S. 745. The telegram to the officers of the court directing an adjournment from the 12th to the 19th of July may be considered an order in writing. A telegram has been classed as a memorandum in writing, within the statute of frauds. Thomp. Electr. Secs. 476, 477. But a conversation or order sent by telephone cannot be properly termed a 'written' conversation or order. The statute requires that a written order should be directed alternatively to the marshal, and, in his absence, to the clerk, to adjourn the court. Rev. St. Sec. 672. The court was not adjourned by the written order of court on the 19th day of July. Did the term lapse for this reason? This is a question not free from difficulty.

The case of Railway Co. v. Hand, 7 Kan. 380, is directly in point, to the effect that, under the condition of affairs presented in this case, the term would not lapse. In that case a verdict was received and judgment ordered on Saturday, the 5th of December. The court adjourned until Monday, the 7th. The judge was absent until the 9th, when court was called. On the 8th a motion for a new trial was filed. It was held to have been filed during the term. In that case the court said:

'The term of court is fixed by law. Having once opened, it so continues till the term expires or an adjournment sine die is made.'

In the case of Labadie v. Dean, 47 Tex. 90, the court said:

'The court convened and was duly organized at the time prescribed by law. When a court is organized and opened for a regular term, the term continues until it is ended by order of final adjournment, or until the efflux of the time fixed by law for its continuance. * * * The orders of adjournment of its sessions from day to day, or to a particular hour of the day, are mere announcements of its proposed or intended order of transacting the business to come before it during the term. But, certainly, the failure of the court to meet at the hour or on the day to which it had thus taken a recess can in no way affect or put an end to its term.'

In the case of Barrett v. State, 1 Wis. 156, it was sought to set aside a verdict in a case because it was received during an adjournment of the court. The court adjourned at 6:30 o'clock p.m. to the next day at 8:30 a.m. Between these times the court received the verdict of a jury. It was held that the verdict was received in term time. In the discussion of the question, the court said: 'But, for all general purposes, the court is considered as in session from the commencement till the close of the term. ' In this case it was shown that during the time when a court was adjourned, as it is called, the court had control over juries and their conduct; that grand juries could be in session, and witnesses could be examined and punished for contempt by the court for refusing to answer proper questions.

From these cases it would appear that these 'adjournments,' as they are...