Virginia, T. & C. Steel & Iron Co. v. Harris

• Decision Date: 13 February 1907
• Docket Number: 690.
• Citation: 151 F. 428
• Parties: VIRGINIA, T. & C. STEEL & IRON CO. et al. v. HARRIS.
• Court: U.S. Court of Appeals — Fourth Circuit

151 F. 428

VIRGINIA, T. & C. STEEL & IRON CO. et al. v. HARRIS.

No. 690.

United States Court of Appeals, Fourth Circuit.

February 13, 1907

Charles A. Moore (Moore & Rollins and Bullitt & Kelly, on the brief) for plaintiffs in error.

Locke Craig (J. M. Gudger, Sr., on the brief), for defendant in error.

Before GOFF, Circuit Judge, and WADDILL and McDOWELL, District Judges.

GOFF Circuit Judge.

This case was heretofore presented to this court, on questions other than those now involved. 80 F. 228, 25 C.C.A. 382. The disposition of the motion to set aside the judgment complained of by the defendant in error raises questions of great practical importance, and but for one fact the contention of the plaintiff in error would not be without merit.

The defendant in error moved the court below to set aside the judgment, so far as it related to him, theretofore rendered in favor of the plaintiff in error. The original litigation was instituted in the year 1888, the plaintiff seeking to recover possession of a tract of land containing about 57,000 acres. Among the many defendants was the defendant in error who claims about 250 acres of said land. He had filed his answer and his defense bond before the judgment now sought to be set aside was entered. The judgment was rendered June 24, 1896, and the motion to vacate it was made June 11, 1897. Such proceeding to vacate was had under the provisions of the Code of North Carolina, reading as follows:

'The judge may likewise, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited, or by an order to enlarge such time; and may also in his discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to this code, the judge may, in like manner and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto. ' Code N.C. 1883, Sec. 274.

The insistence that the provisions of the North Carolina Code were not applicable, and that they were erroneously applied in the proceedings under consideration, is, in our judgment, without force. Prior to the enactment of section 914, Rev. St. U.S. (U.S. Comp. St. 1901, p. 684), the rule may have been otherwise, but since the enactment of that legislation, certainly in actions of ejectment, it has been held that the practice, pleadings, and forms adopted in the states, by virtue of state legislation, should, in cases coming within their purview, govern procedure in the courts of the United States held in such states respectively. Equator Co. v. Hall, 106 U.S. 86, 1 Sup.Ct. 128, 27 L.Ed. 114; Smale v. Mitchell, 143 U.S. 99, 12 Sup.Ct. 353, 36 L.Ed. 90; Travelers' Protective Ass'n v. Gilbert, 111 F. 269, 276, 49 C.C.A. 309, 55 L.R.A. 538, and cases cited.

We find nothing in the record that justifies us in holding that the facts as found by the court below were not in every particular sustained by the evidence offered, and even if the contention of the plaintiff in error should be sustained, that other and additional facts were authorized by such evidence and should have been found by the court, still admitting such facts as duly found, nevertheless we would be impelled to the conclusion that the judgment complained of is without error, for even with such additional facts the original judgment against the defendant in error should not in good conscience be permitted to stand. Harris had not neglected his case, but had employed counsel and tendered his pleas, and, while it is true that his counsel were absent during the trial to the jury, still it is clearly shown that they were present and in attendance upon the court during the term at which the case was tried, and that they left the court believing that the claim of the defendant in error would not be disposed of during that term. As to this there is no controversy, and, this being true, it would be unconscionable to hold the defendant in error bound by the judgment that was, as we think, improperly entered against him. It is this fact-- that counsel for defendant in error, who were present seeing to his interests, left the court believing that while the case was to be tried so far as the title and boundry of the plaintiff was concerned, and not as to the claims of the defendant in error, which were to be subsequently heard as counsel understood it-- that takes from the case of the plaintiff in error the strength it would otherwise have, and makes it our duty to affirm the judgment of the court below.

While it is true that a party seeking to have a judgment set aside because of mistake, inadvertence, surprise, or excusable neglect should show a prima facie valid defense, we think it sufficiently appears from the motion made by defendant in error, and the papers properly considered therewith, that he has made such showing when he sets forth the grants under which he claims, and alleges adverse possession of the land in controversy for over 20 years, such grants being prior in date to those under which his adversary claims.

McDOWELL District Judge.

In this case a judgment in ejectment rendered in the court below in 1896 was on motion, made after the end of the term, and on ex parte affidavits, set aside in 1906 on the ground of excusable neglect. There are several reasons which lead me to regard the decision below as erroneous; but, for want of seasonable objection, such reasons cannot properly be here considered. The point of greatest interest is as to the propriety of the procedure below. As there was no objection on this score until the decision of the trial judge had been announced, especially as this cause was brought here on bill of exceptions and writ of error, I do not dissent from the conclusion reached by the majority. See Highland v. Strickley, 116 F. 852, 854, 855, 54 C.C.A. 186, and authorities cited. I do not, however, concur in the reasoning of the majority, and the great practical importance of the question discussed in the opinion of the court seems to afford a reason for the following discussion.

The procedure below is held to have been authorized by the North Carolina statute (section 274, Code N.C. 1883; section 512, 513, Revisal 1905) quoted in the opinion of the court. This statute, as I understand, gives to the state judges a power which, prior to the adoption of the Code, could in North Carolina have been exercised only by the chancery courts of that state, and which, since the adoption of the Code and prior to the enactment of this statute, could have been exercised only in a plenary and independent action. Moore v. Hinnant, 90 N.C. 163; Clemmons v. Field, 99 N.C. 400, 6 S.E. 790, 6 Am.St.Rep. 529.

That a recent state statute, such as this is, does not, under section 723, Rev. St. U.S. (enacted in 1789) (U.S. Comp. St. 1901, p. 583), supply the adequate remedy at law which defeats the federal equity jurisdiction seems to be clearly settled. McConihay v. Wright, 121 U.S. 201, 206, 7 Sup.Ct. 940, 30 L.Ed. 932; Robinson v. Campbell, 3 Wheat. 212, 222, 223, 4 L.Ed. 372; Cropper v. Coburn, 2 Curt. 465, 6 Fed.Cas. 871; Missouri Co. v. Elliott (C.C.) 56 F. 772, 775; Alger v. Anderson (C.C.) 92 F. 696, 700; Pokegama v. Klamath (C.C.) 96 F. 34, 55, 56; Natl. Co. v. State Bank, 120 F. 593, 603, 56 C.C.A. 657, 61 L.R.A. 394.

Bearing in mind the language of article 3, Sec. 2, of the federal Constitution, the language of the first judiciary act (Act Sept. 24, 1789, 1 Stat. 78, c. 20, Sec. 11), and of the first section of the judiciary act of 1875, we have before us the warrant for the often-repeated statements of the Supreme Court that the jurisdiction of the federal Circuit Courts (so far as we are now concerned) is only of 'cases at law or in equity. ' That neither the conformity act of 1872 (section 914, Rev. St.) nor the 'rule of decision' statute of 1789 (section 721, Rev. St. (U.S. Comp. St. 1901, p. 581)) applies here is abundantly settled, unless it be because the nature of the judgment of 1896 (being in ejectment in effect) renders the application and proceedings to set it aside (for excusable neglect) a common-law cause, or a trial at common law. Unless it be for this distinction between the case at bar and Bronson v. Schulten, 104 U.S. 410, 26 L.Ed. 797 (in the light of Phillips v. Negley, 117 U.S. 665, 6 Sup.Ct. 901, 29 L.Ed. 1013; Hickman v. Fort Scott, 141 U.S. 415, 418, 12 Sup.Ct. 9, 35 L.Ed. 775; Rio Grande Co. v. Gildersleeve, 174 U.S. 603, 609, 19 Sup.Ct. 761, 43 L.Ed. 1103; and Tubman v. B. & O., 190 U.S. 38, 39, 23 Sup.Ct. 777, 47 L.Ed. 946), I am satisfied that the learned majority of this court would not have concluded to affirm the decision of the trial court on the ground stated.

There are undoubtedly some common-law powers over judgments at law of a previous term vested in the federal law courts (Pickett v. Legerwood, 7 Pet. 144, 8 L.Ed. 638) exercised by motion in lieu of writ of error coram vobis, and by way of correction by nunc pro tunc orders. The case at bar, of course, does not fall under either head. It is founded on excusable neglect, and is, under the English and settled federal theory, an equitable ground for relief. It follows that the power to afford relief from a judgment at law of a former term on such ground is an equitable power, derived originally by the English chancellor from the absence or inadequacy of the powers of the English law courts. 11 Ency.Pl. & Pr. 1168; Albers v. Whitney, 1 Story, 310, Fed. Cas. No. 137. That...