United States v. Wallace

• Citation: 46 F. 569
• Parties: UNITED STATES v. WALLACE et al.
• Decision Date: 20 June 1891
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

46 F. 569

UNITED STATES v. WALLACE et al.

United States District Court, D. South Carolina.

June 20, 1891

Abial Lathrop, Dist. Atty.

J. P K. Bryan, for defendants.

SIMONTON J.

One L W. Wallace, charged with violating sections 5392, 5438, Rev St., entered into a recognizance with J. C. Jaudon, as his surety, for appearance at October term, 1889, of this court. He fled the jurisdiction. His case was called at the October term, and at the succeeding January term. As he failed to appear, a scire facias on the recognizance was issued against him and Jaudon. The latter made return under oath. In this return, after admitting that he was the surety on the recognizance of the absconding defendant, and after stating that he has good ground for believing that Wallace was within reach, and could be arrested, he prayed the proceeding against him be continued, 'with no other desire than that the deponent may have ample time to apprehend the said Wallace, and deliver him into the custody of the marshal ' This return, signed by W. J. Gayer, Esq., his attorney, was filed on 5th May, 1890. The continuance was allowed him. The hearing was also postponed at the July term and at the succeeding October term. At the January term, 1891, the rule was made absolute, and the recognizance estreated, and adjudged forfeited. Leave was given to enter judgment and issue execution. The marshal levied under the execution 2d March, 1891. Soon thereafter Jaudon filed his petition, stating that, by the inadvertence of counsel employed by him, no return was made and filed to the rule to show cause why the recognizance should not be forfeited, and the same was adjudged by default; that he has a good defense in law; prays that he be allowed to make his return nunc pro tunc, and that, pending the hearing thereof, 'the default be set aside, and proceedings stayed. ' On this petition a rule to show cause why the prayer thereof be not granted, was served on the district attorney, who, for answer to said rule, says 'that the court hath not jurisdiction to set aside the said judgment. ' The petition is not accurate in its statements that Jaudon made no return, and that judgment by default was taken. He did make return, in effect, admitting his liability, and craving indulgence, so that he could arrest Wallace; and after reasonable delay for this purpose, judgment was taken on the return.

No court of the United States can revise or amend its own final decree or judgment for errors of fact or of law after the end of the term in which such decree or judgment was rendered. Sibbald v. U.S., 12 Pet. 488; Bronson v. Schulten, 104 U.S. 417; Phillips v. Negley, 117 U.S. 674, 6 S.Ct. 901. The present motion, however, is not directed to the correction of any error of law or of fact on the part of the court on rendering the judgment. But counsel has intimated that he can show that the judgment is void. The court has jurisdiction over this question. Black, Judgm. Sec. 307. The district attorney will answer the rule; his exception to the jurisdiction being overruled.

UPON FILING RETURN BY DISTRICT ATTORNEY.

The district attorney has filed his return. The case seems to have assumed a double aspect. In the petition Jaudon seeks to open the judgment taken against him, so that he may make a defense thereto. He asks the court to do this, because he was deprived of this defense by the inadvertence of his counsel. He argues that, as section 914 of the Revised Statutes declares that the courts of the United States should conform to the practice, pleadings, form, and mode of procedure of the courts of the state in which they are severally established, we should follow the course prescribed in section 195, Code Civil Proc. S.C., which permits the court at any time within a year to relieve a party from a judgment order, or other proceedings taken against him through mistake, inadvertence, or excusable neglect. This is a provision of a Code Of Civil Procedure, and therefore cannot apply to this case, which is in a criminal court. State v. Wilder, 13 S.C. 344. Besides this, the courts of the United States have no authority to set aside, vacate, or modify their final judgments after the term in which they are rendered; and this authority cannot be conferred on them by the statutes of a state, or the practice of its courts. Bronson v. Schulten, 104 U.S. 410; In re Chateaugay Iron Co., 128 U.S. 554, 9 S.Ct. 150; Association v. Barry, 131 U.S. 120, 9 S.Ct. 755. Even were this practice adopted in this court, the case, as presented by the petition, would not come within it. In Clark v. Wimberly, 24 S.C. 138, the court confine the relief afforded by this section 195 to parties who, by some mistake, inadvertence, etc., have lost the opportunity of being present or of being represented at the trial. Jaudon was represented throughout the case by an attorney, and in this respect the petition simply asks that he may now be permitted to make a defense which his attorney failed to make for him. Jaudon was regularly before the court, which had jurisdiction of him and of the scire facias. 'The defense could have been made; indeed the proceeding-- 'a rule to show cause'-- invited them to make it. Failing to do so, the result must be the same as if he had formally made it, and failed. ' McNair v. Ingraham, 21 S.C. 74; McDowall v. McDowall, Bailey, E...