6 F.2d 386 | 2d Cir. | 1925
'The plaintiff sued for the death of her intestate while an employee of the defendant as a brakeman upon its railroad, assigned to duty in Dunkirk, N. Y. The defendant denied liability, and the ease was tried to a jury before Hazel, J., on November 24th, 1924. At the conclusion of the plaintiff’s ease the judge directed a non-suit for insufficiency of proof. On December 5th the defendant entered a judgment of nonsuit dismissing the complaint, without stating that it was not dismissed upon the merits. On December 9th the plaintiff served a notice of motion, 'returnable December 15th, to amend the judgment, so that it should appear that the complaint was not so dismissed. The motion was granted, and on December 27th the judgment was amended as prayed by the plaintiff. The defendant assigns error that the court was without jurisdiction to amend the judgment when once finally entered, though it does not assign that the original judgment correctly expressed the court’s decision.
At common law all judgments were regarded as entered on the first day of the term, and remained within the power of the court for all purposes until that term had expired. Cheong Kee v. U. S., 3 Wall. 320, 18 L. Ed. 72; Bassett v. U. S., 9 Wall. 38, 19 L. Ed. 548; Barrell v. Tilton, 119 U. S. 637, 7 S. Ct. 332, 30 L. Ed. 511. That remains the rule in federal courts, regardless of what may be the procedure in the state. In Jen
The order was clearly correct, and, as the point of jurisdiction alone is raised, the judgment must be affirmed.
