S. M. Hamilton Coal Co. v. Watts

232 F. 832 | 2d Cir. | 1916

LEARNED HAND, District Judge

(after stating the facts as above). [1] An order of the character now under review, which is equivalent to one setting aside a judgment and granting a new trial, being in the discretion of the court below, is not within the jurisdiction of this court to review. If, however, the action of the court is beyond its jurisdiction, that question and that alone may be reviewed by writ of error. City of Manning v. German Ins. Co., 107 Fed. 52, 46 C. C. A. 144; Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901, 29 L. Ed. 1013.

[2] The order dismissing the complaint for failure to prosecute was a final disposition of the cause, and was therefore not within the power of the court to vacate after the term at which it was granted (U. S. v. Mayer, 235 U. S. 55, 35 Sup. Ct. 16, 59 L. Ed. 129), unless there are some circumstances in the case which take it out of the ordinary rule. The court may correct its judgment after the term, if there be a clerical error, or in case the judgment has been entered by misprision of the clerk, or for any error which the old writ of error coram nobis would,have reached. Those errors are stated by Mr. Justice Hughes in U. S. v. Mayer, supra, 235 U. S. page 68, 35 Sup. Ct. page 19, 59 L. Ed. 129. They were only errors of law disclosed by the record, or “errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself.”

[3] In the case at bar there was no clerical error, no misprision of the clerk, no error of law disclosed by the record. Assuming, without deciding, that the plaintiff’s story- was correct, the only possible irregularity in the proceedings affecting their regularity, arose from his contention that the original answer had not been verified in accordance with section 52Ó of the Code of Civil Procedure, in that the date of the verification was not stated, that no notarial seal was added, and that the word “Public” was left off in the phrase, “Notary Public.” The law regarding errors in the verification is to be found in section 528 of the Code of Civil Procedure of New York, which is as follows:

“The remedy for a defective verification' of the pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy oí a sufficient verification, in a case, where the adverse party is entitled to a verified pleading, he may treat it as a nullity.”

Now the plaintiff swears that when he came to his attorney’s office on October 29, 1907, the copy of the answer which he then saw was the same as that on file. In order, then, to take advantage of those defects in the verification of the pleadings, it was necessary for the attorney to return that answer with due diligence and the Supreme Court of the state of New York has determined that due diligence in such a case requires a return within 24 hours. Sweeney v. O’Dwyer, 45 Misc. Rep. 43, 90 N. Y. Supp. 806; Paddock v. Palmer, 32 Misc. Rep. 426, 66 N. Y. Supp. 743. No one contends that the plaintiff’s attorney did return the first answer in season, if he ever received it, as the plaintiff himself asserts. Hence there was no excuse for disregarding the answer.

[4, 5] If, on the other hand, the answer was first served in November, and if at that time the original answer had been changed upon the files of the clerk, as might be done by amendment, the second answer was still not a nullity, and the case was at issue. It is true that if an admission in the answer had been changed, as the plaintiff claims, the earlier form of the admission might have been restored on application by the plaintiff himself; but that question would be relevant only in a trial upon the merits, and did not affect the fact that the case was at issue under the answer, and therefore subject to dismissal for lack of prosecution. The error of fact, and it was really not such at all, therefore, would not have been one “material to the validity and regularity of the legal proceeding itself,” and would not have been searched by a writ of error coram nobis.

[6] The defendant is not shown to have been privy to the disloyalty of the plaintiff’s attorney, if such disloyalty existed, for the District Court has not found that it committed any fraud in procuring the judgment of dismissal or in changing the answer. Even assuming that the answer had been changed by procurement of the defendant, the change did not prevent the cause from being at issue, or contribute to the dismissal of the complaint, and it would be irrelevant, for the purposes of this review.

The order vacating the judgment was therefore without the jurisdiction of the District Court, and it must therefore be reversed, with costs, leaving the judgment of dismissal to stand.