Tilghman v. Werk

Citation39 F. 680
PartiesTILGHMAN v. WERK et al.
Decision Date30 August 1889
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

Francis T. Chambers and Perry & Jenny, for plaintiff.

Harmon Colston, Goldsmith & Hoadly and Paxton & Warrington, for defendants.

JACKSON J.

The motions made herein by complainant and respondents should each be severally denied.

1. The motion of respondents for a nunc pro tunc order dismissing the complainant's application or petition to vacate the decree herein of April 9, 1878, and for a rehearing of the cause, based upon the alleged action or opinion taken or expressed by the circuit judge at Knoxville, Tenn., on the 29th day of July, 1884, when said petition was heard by him should be refused, because that action or opinion of the circuit judge never assumed the form of the final decision or judgment of this court, wherein the cause was pending because there is no official record or memoranda of this court on which to base or rest the nunc pro tunc order now applied for, and because it would be contrary to sound policy and destructive of that certainty and conclusiveness which should attend judicial action to base judgments and decrees upon the recollection of witnesses as to what the judge of a court may have said about a case when not presiding in the court where such cause is pending. Judicial action should not rest upon a foundation so unstable and insecure. The circuit judge may, undoubtedly, by consent of parties, hear a cause outside of the particular district in which it is pending, but the opinion or view he may express on such a hearing does not rise to the dignity or assume the force of a judgment of the court wherein the case is pending until some official notice or communication of the judge's opinion or decision is made or transmitted to the proper officer of such court, whose duty and function it is to enter or preserve some record of all judicial action taken or had therein. A judge's opinion when and while absent from the court over which he presides, in respect to matter or questions therein pending for decision, however called forth or expressed, falls short of being the judgment of such court. Judicial action is reached when the judge's opinion is expressed in, or conveyed in some authoritative manner to, the court wherein the controverted matter is pending. No judicial action such as will warrant the entry or granting of a nunc pro tunc order dismissing complainant's petition is shown in the present case. Furthermore, the parol testimony leaves some doubt as to what were the precise views and opinions of the circuit judge in respect to complainant's petition. Under such circumstances the respondents' motion could not be properly allowed. It is accordingly denied, with costs.

2. The complainant's petition filed July 27, 1881, to vacate the decree of April 9, 1878, and for a rehearing of the cause should now be dismissed. This petition cannot be treated or regarded as an original bill in the nature of a bill of review, which lies only for fraud; and such fraud, as has been said by very eminent judicial authority in an English case, must be actual and positive, showing a mala mens,-- a meditated and intentional contrivance to keep the opposite party and the court in ignorance of the real facts of the case, and thus obtain the decree. Patch v. Ward, L.R. 3 Ch. 203. No such fraud is set up or relied upon, and the affidavits in support of and against the petition clearly establish that no fraud in fact was practiced by respondents or their counsel in procuring said decree. Neither can this petition be treated as a bill of review to correct errors of law apparent on the face of said decree of April 9, 1878. No error of law apparent on the face of the decree or the record is either set up or relied upon in said petition. The petition to vacate said decree is filed after the term at which it was rendered, more than two years after the rendition of the decree. It is clear that the court has no authority or jurisdiction to set aside or vacate a decree under such circumstances and grant a rehearing, except for good cause shown, and in the absence of negligence on the part of the petitioners. The matters dehors the record which are relied upon as grounds for vacating the decree are-- First, that there was an agreement or understanding between complainant's counsel and counsel for respondents that this suit should stand suspended and undisposed of until the suit of Tilghman v. Proctor (102 U.S. 707) should be decided by the supreme court of the United States, and that this understanding was without the knowledge and consent of complainant and his counsel, disregarded or ignored in taking said decree; and, secondly, that the decree of April 9, 1878, sought to be vacated, was based upon the decision of the supreme court of the United States...

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13 cases
  • Boynton v. Chicago Mill & Lumber Company
    • United States
    • Arkansas Supreme Court
    • 28 Octubre 1907
    ...Eq. (S. C.) 364; 51 Ala. 301; 77 Va. 600; 5 Mason (U. S.) 303; 32 W.Va. 335; 66 Wis. 85; 55 Ill. 458; 5 Sneed (Tenn.) 100; 64 Ark. 126; 39 F. 680; 21 So. 490. Because the court, consideration, gave to the muniments of title introduced in evidence an erroneous construction, is no ground for ......
  • State Fair Association v. Terry
    • United States
    • Arkansas Supreme Court
    • 4 Febrero 1905
    ...391; 106 Mass. 521. Appellant is barred by laches. 33 Ark. 165; Cooper, Eq. 91; Story, Eq. 410; 17 Ohio 170; 10 Wheat 146; 41 Cal. 318; 39 F. 680; 81 Tex. 53. newly discovered evidence was merely cumulative. 30 Ala. 409; 122 Ill. 286; 28 Ia. 497; 27 Miss. 798; 48 Tenn. 754; 89 Va. 885; 55 N......
  • Omaha Elec. Light & Power Co. v. City of Omaha
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 1 Enero 1914
    ...260. It is also urged that a variance in judicial decisions is not a sufficient cause to justify us in disturbing our decree. Tilgham v. Werk (C.C.) 39 F. 680, and Hoffman Knox, 50 F. 484, 1 C.C.A. 535, are said to support this contention. If there was no change in the situation of the part......
  • Continental Oil Co. v. Osage Oil & Refining Co., 727.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 3 Febrero 1934
    ...the equitable principles of laches. Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 10 S. Ct. 736, 34 L. Ed. 97; Tilghman v. Werk (C. C. Ohio) 39 F. 680; Hagerott v. Adams, supra; Hughes, Federal Practice, § Leave of court is not required to authorize the filing of a bill of rev......
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