The district court’s memorandum is reported as Schwartz v. Pattiz,
This diversity case seems to be beset with more than its share of procedural difficulties. Not the least was the failure of the plaintiffs in their orig
*301
inal and amended comрlaints to allege diversity of citizenship rather than mere diversity of residence. This, of course, as this court repeatedly has held, does not satisfy the requirements for federal diversity jurisdiction under 28 U.S.C. § 1332(a) (1). Texaco-Cities Serviсe Pipe Line Co. v. Aetna Cas. & Sur. Co.,
With this settled, we turn to the chronology of the litigation:
1. In November 1961 the plaintiffs Julia and Julius Schwartz, who are the appellees here, sued the defendants in federal court for alleged defaults in the payment of instalments called for by the terms of a promissory note executed by the defendants as co-signers in August 1959. The complaint invoked the note’s acceleration clause and sought recovеry of the entire remaining principal, then amounting to $23,343.32, and, in addition, interest and attorney’s fees.
2. The defendants by their answer alleged that the note was a nullity because of representational fraud with respect to the real estate for which it was given in part payment. By an accompanying counterclaim the defendants sought cancellation of the note or, in the alternative, actual and punitive damages aggrеgating $60,000.
3. The plaintiffs by their reply denied the fraud allegations of the counterclaim and alleged payment by the defendants, for more than two years and without complaint, of monthly instal-ments called for by the note.
4. Trial settings were vacated and the case was passed for settlement. The parties entered into negotiation and they, with their attorneys, executed a Stipulation for Dismissal on November 8, 1962. The stipulation recited thаt the matters in controversy in the “complaint and counterclaim” were compromised and settled and that it was agreed that the cause “shall be dismissed with prejudice to any other or future action on account of the matters” therein contained.
5. Plaintiffs’ counsel became concerned that the stipulation might preclude a further suit in the event of default in the payment of subsequently accruing instalments. The amended cоmplaint was then prepared. This did not invoke the note’s acceleration clause and sought recovery only of the then delinquent instalments. These were three in number and aggregated $675. On December 15, 1962, plaintiffs’ cоunsel forwarded to defendants’ counsel a copy of the amended complaint and two copies of the Stipulation for Dismissal with the stipulation’s original date of November 8 changed to December 20, 1962, and with thе date change initialed by plaintiffs’ counsel. Defendants’ counsel initialed the date change and returned one copy of the stipulation.
6. Also, on December 15, 1962, the original of the amended complaint was submittеd to Judge Regan and placed by him directly in the court file. It was not delivered at that time to the clerk or marked filed by the clerk.
7. On January 11, 1963, the Stipulation for Dismissal was filed by defendants’ counsel.
The matter, thus developed, thеn lay dormant for more than three years until 1966.
8. On April 27, 1966, plaintiff Julia Schwartz (plaintiff Julius Schwartz having died in the interim), now represented by her present counsel, instituted against the defendants another federal diversity suit on the same note. This new complaint alleged default in the in-stalments due in February, March and April 1966, invoked the note’s acceleration clause, and sought recovery of the *302 entire then remaining principal, amounting to $16,995.31, and, in addition, interest and attorney’s fees. The defendants responded with a motion to dismiss on the ground of res judicata. Memo-randa were filed by both sides. On October 25, 1966, by leave of court, Rule 41(a) (2), Fed.R.Civ.P., the plaintiff dismissed this second suit without prejudicе and at her cost.
9. On November 10, 1966, Mrs. Schwartz, referring to Rule 60(a), Fed. R.Civ.P., filed her motion to correct the record in the 1961 suit nunc pro tunc to reflect the filing of the amended complaint on December 15, 1962. The motion alleged the 1962 delivery of the amended complaint to the court for the purpose of filing; the failure of the clerk to enter the filing in the court’s records; oversight in such failure; Mrs. Schwartz’ ownership in all rights in the cause by virtue of surviving her husband; the understanding and intention on the part of all parties and the court that the amended complaint was actually filed and entered; and possible detriment to the plaintiff because of the failure to enter the filing. This motion was heard by Judge Regan and evidence was presented by the plaintiff by way of testimony from the attorney who first had represented the plaintiffs. The defendants presented no evidence but took the positiоn that the court was without jurisdiction to enter any order sought by the motion.
10. Judge Regan, by opinion and order filed January 23, 1967, granted the motion to correct the record.
11. On February 8, 1967, plaintiff Julia Schwartz instituted another diversity suit against the defendants, seeking the same relief requested in the 1966 action.
12. On February 14,1967, the defendants filed a notice of appeal “from the judgment and order entered herein on January 23, 1967”.
Such is the procedural record of this litigation.
*303
The case obviously is not without its procedural complexities. We are satisfied, however, that the trial court possessed the power, under Rule 60(a),
2
Fed.R.Civ.P., to enter its order of Jаnuary 23, 1967. The first sentence of Rule 60(a) was derived, at least in part, from Equity Rule 72 and its reference to “errors arising from any accidental slip or omission”. 6A Moore’s Federal Practice, par. 60.05 (2d Ed. 1966) ; 3 Barron and Holtzoff, Fedеral Practice and Procedure, § 1321, p. 390 (Wright Edition 1958). What the court here was effectuating, it seems to us, was nothing more than the correction in the formal record of a gap or error “arising from oversight or omission”, within the dеfinite and positive language of Rule 60 (a)’s first sentence. The intent of the parties and, indeed, of the trial court itself, is clear. Counsel and the litigants all had signed the Stipulation for Dismissal and the defendants had even made рayments of installments coming due after January 1963. As the district court stated, p. 459 of 41 F.R.D., its action “would result simply in the record speaking the truth”. This very phrase appears in 3 Barron and Holtzoff, Federal Practice and Procеdure, § 1324, p. 398 (Wright Edition 1958). Professor Moore has observed, “The errors envisioned by Rule 60(a) cover such things as misprisions, oversights and omissions, unintended acts or failures to act”. 6A Moore’s Federal Practice, par. 60.06(1), p. 4042 (2d Ed. 1966). The district court by its order recognized only what was understood, what was intended, what was agreed, and what the court itself had accepted as the resolution of the litigation then pending. No prejudice could possibly result from what the court did. The situation is akin, we feel, to that in Hamilton v. Stillwell Van & Storage Co.,
Further, we regard the situation here as also one of “clerical mistake” within the meaning and reach of Rule 60(a). We are not persuaded by the defense argument that the Rule’s reference a clerical mistake is necessarily withholdto one committed only by the clerk. Professsor Moore is not so persuaded, for he states unequivocally, “Relief may be had from the clerical mistakes of the court, clerk, jury or party”. 6A Moore’s Federal Practice, par. 60.06 [3], p. 4044 (2d Ed. 1966). Neither was the court which decided In re Merry Queen Transfer perseсu266 F.Supp. 605, 607 (E.D.N.Y. 1967). We do not regard as contrary authority the statement, “A clerical error is generally defined as an error made by a clerk in transcribing or otherwise”, which appears in West Virginia Oil & Gas Co. v. George E. Breece Lumber Co.,
See, generally, Matthies v. Railroad Retirement Bd.,
The plaintiff suggests that this is an appropriate case for the award of damages, under 28 U.S.C. § 1912, on af-
*304
firmаnce. Although we have made such an award on occasion, see Layton v. Selb Mfg. Co.,
Affirmed.
Notes
. See Saint Paul Mercury Indem. Co. v. Red Cab Co.,
. Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. * * *