34 App. D.C. 502 | D.C. Cir. | 1910
delivered the opinion of the Court:
Appellant relies upon the following assignments of error:
“1. Setting aside of judgment of June 4, 1909.
“2. Overruling relator’s demurrer to respondent’s amended answer.
“3. Striking out relator’s traverse.
“4. Dismissing relator’s petition.”
The first assignment of error presents a question not submitted to the court below. Hence, it is not properly before us for consideration. It may be suggested, however, that no error was committed by the court in vacating this order. The decree was set aside during the term at which it was entered. A court has full control of its judgments, orders, and decrees during the term at which they are rendered or entered of record. Quoting from the opinion in Bronson v. Schulten, 104 U. S. 410, 26 L. ed. 797: “It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.” The absolute power of a court over its judgments during the term is well expressed in Freeman on Judgments, 4th ed. sec. 103, as follows: “During the term at which a judgment was rendered, the power of the court over it is so absolute that it may vacate
The second and third assignments- of error may be considered together. They both relate to the sufficiency of appellee’s amended answer. Appellant’s demurrer admitted the charge of fraud contained in the answer, and the traverse did not deny it. Hence, appellant stood in a position where the right to the writ could not be maintained upon any theory of the case. The appellant is here seeking the aid of a writ of mandamus to compel the appellee to pay an accrued pension for injuries which she baldly admits her husband never received. The mere fact that Gordon successfully deceived Congress into passing the original act for his relief, and for a number of years fraudulently collected money from the government, to which he was not entitled, furnishes no basis whatever for a reinstatement of the claim. No court will permit itself knowingly to become the instrument through which an attempted fraud may be perpetrated. To be entitled to the writ, the appellant is required to establish not only a specific legal right, but the lack of a legal remedy. No legal right can be founded in fraud. Where there is no right, it is unnecessary to inquire for the remedy. By appellant’s own admissions, this claim is so tainted as to justify any court in refusing to extend relief through the exercise of the high and extraordinary powers invoked by the writ of mandamus.
This court had occasion to consider this question in a similar case (Garfield v. United States, 31 App. D. C. 332), where the lower court had directed that a writ of mandamus issue against the Secretary of the Interior, commanding him to restore the relators to the rolls of citizenship of the Creek Indian Nation. In that case fraud on the part of the relators in procuring their enrolment was charged in the answer upon information and belief. Here the charge is,positively made. Belators demurred to the answer. This court, in holding that the demurrer constituted an admission of fraud, and that judgment dismissing the petition on the face of the record should have been entered,
A number of other matters were presented at bar, which need not be considered, since the court below was fully justified in entering an order of dismissal on the face of the record. The judgment is affirmed, with costs, and it is so ordered.
Affirmed.
A motion by appellant for a rehearing was denied April 5, 1910, and on April 11, 1910, an application by the appellant for a writ of error to the Supreme Court of the United States was denied.
