271 F. 838 | 8th Cir. | 1921
Lead Opinion
(after stating the facts as above). We will dispose of the questions in the order in which they were assigned by appellant in the assignment of error.
The acts of Congress treat the divisions of a district, unless otherwise provided, as separate districts for jurisdictional purposes. Section 53, Judicial Code (Comp. St. § 1035); Bankruptcy Act, secs. 18f and 18g (Comp. St. § 9602). It has been held that an order granting a new trial, by the 'District Judge, while in another division than where the trial and conviction were had, was within his jurisdiction. Abbott v. Brown, 241 U. S. 606, 36 Sup. Ct. 689, 60 L. Ed. 1199. The facts in that case were: Abbott had been indicted in the District Court for the Southern District of Florida, held at Tarnpa, Ela., for a violation of the Penal Code (Comp. St. §§ 10165-10519); that being the place for the court of one of the six divisions of that district. In the month of March, 1912, he was tried on the indictment, found guilty, and a sentence of imprisonment imposed. May 24, 1912, he filed a motion for new trial. On June 26, 1912, the motion was heard by Judge Locke, at Jacksonville, in the same district, but in another division, and the motion granted. The order of Judge Locke, granting the new trial was forwarded to and entered by the clerk at Tampa, while the judge was absent, under a rule of the court requiring the court to be held open. He was again tried at Tampa on February 11, 1913, when the jury disagreed. On March 13, 1914,■ he was again tried, and the jury returned a verdict of not guilty. In February, 1915, he was indicted for subornation of perjury. He demurred to this indictment, and moved to quash it, upon the ground that Judge Locke had no jurisdiction to grant the new trial. One of the grounds relied on was that the new trial had been granted out of the division in which the cause was pending and the order entered while that court was not in session; the judge not being present. The demurrer and motion to quash were heard by the then presiding judge, the successor of Judge Locke, who sustained the demurrer and quashed the indictment, upon the ground that Judge Locke had no power or authority, after the adjournment order of March 12, 1912, to vacate or set aside the sentence passed upon the appellant on that date, and when out of the division of the district. Thereupon the United States Attorney procured a commitment to be issued on the original judgment of conviction, and while held in custody under this commitment the appellant applied for a writ of habeas corpus. The trial judge discharged the writ, whereupon the cause was appealed to the Supreme Court. The judgment of the lower court, refusing to discharge the petitioner on habeas corpus, was reversed, the court holding that—
“The judgment of conviction having been vacated by an order of the court made within the scope of its power and jurisdiction, there remains no legal foundation for the commitment issued on March 20, 1915, and the appellant is entitled to be discharged from custody.”
In United States v. Louisville & P. Canal Co., Fed. Cas. No. 15,633, Mr. Justice Miller, sitting as Circuit Justice, held that, notwithstanding section 719, Rev. St. (re-enacted as section 264 of the Judicial Code
Aside from this, the order correcting the decree made by Judge Pollock was entered by Judge Dyer, the regular presiding judge of tire court in which the original decree had been rendered, thereby making it his decree, based on information from Judge Pollock, which was satisfactory to him.
It is also proper to state in this connection that, when the motion was first presented to Judge Pollock, at Kansas City, Kan., no objection to his hearing it in the state of Kansas was made by the solicitors for appellant. The first time this objection was made was when the hearing had been continued and was had at Wichita, Kan., the continuance having been granted at the request of the solicitors of the appellant, upon the ground that they had not had sufficient time to prepare for the hearing.
■ We are of the opinion that no error was committed in overruling the objection to the hearing of the motion by Judge Pollock in the state of Kansas.
The only modification of the decree sought and granted was to expunge the findings of fact included in the decree, reflecting on appellees. They were not parties to that action, were not present at the hearing, and did not know of these findings until a few days before they filed their motions. They first learned of it by publication in a newspaper and within a few days thereafter filed their motions. They certainly cannot be said to have been guilty of a lack of diligence. Not having been parties to that action, they were not chargeable, with constructive notice of the contents of the decree. Findings of fact have no place in a decree in a national court. Rule 71 of the present Equity Rules (33 Sup. Ct. xxxviii), a re-enactment of rule 86 of the former Equity Rules, promulgated March 2, 1842, prescribed the form, for decrees,
The findings complained of in effect found appellees guilty of having will fully and knowingly sworn falsely, when they were neither parties to the action to set aside the order granting naturalization to the defendant in that case, nor present at the hearing, and therefore without 'an opportunity to defend themselves against so serious an imputation made in a solemn decree of a superior court.
The law is well settled that a court may correct its judgment after the expiration of the term at which it was rendered, if it was without jurisdiction, in excess of jurisdiction, erroneous on face of it, or improper by reason of doing injustice. Farmers’ & Merchants’ Bank v. Arizona Mutual S. & L. Ass’n, 220 Fed. 1, 135 C. C. A. 577; In re Dennett, 221 Fed. 350, 136 C. C. A. 422; Sweeney v. State, 35 Ark. 585.
A judgment upon a matter not within the pleadings and not litigated is void, being contrary to fundamental principles of justice. Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464; Coe v. Armour Fertilizer Works, 237 U. S. 413, 426, 35 Sup. Ct. 625, 59 L. Ed. 1027. “A decree has to be founded on the allegata as well as probata of the case.” Putnam v. Day, 89 U. S. (22 Wall.) 60, 66 (22 L. Ed. 764); Hendryx v. Perkins, 114 Fed. 801, 806, 52 C. C. A. 435. If the error in the decree is within the recollection of the judge who presided at the trial, the correction may be without notice. In re Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865; Odell v. Reynolds, 70 Fed. 656, 17 C. C. A. 317; Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., 136 Fed. 27, 68 C. C. A. 557, affirming s. c. (C. C.) 126 Fed. 552.
The decree went beyond the relief asked by the plaintiff in that case, was highly prejudicial to appellees, who were not before the court, and it was the duty of the court to correct it in justice to the parties thus wronged. Brinkerhoff v. P'ranklin, 21 N. J. Eq. 334; Black on Judgments, § 161. In the decree appealed from, the learned trial judge again included his findings exonerating appellees from the imputations cast on them in the original decree. While this should not have been done, the learned trial judge, no doubt, felt that as the former decree contained these reflections on the petitioners, the corrected decree rectifying this error, should also appear on the records of the court.
We are of the opinion that, in neither decree should the findings of fact have been included, but in justice to the appellees it was proper for the court to make the findings it did and make these findings a part of the record of the cause, by placing them among the files of the cause, instead of including them in the decree.
The deposition of Mr. Sacks was properly admitted. He was neither a resident ,of the Eastern District of Missouri, ñor of the District of Kansas, and resided more than 100 miles from the court in which the proceedings were pending, and the place of the hearing. While the time given by the notice to take his deposition was rather short, still, as the hearing was set for September 26th, in order to have the deposition at the hearing, they had to be taken, riot later than September 24th. Mr. Sacks, who resided at Tulsa, Old., first learned of the contents of the decree on September 23d, while he was in St. Douis on some business. He immediately filed his petition to expunge so much of the decree as reflected on him, and served notice on the solicitors for appellant that his deposition would be taken the next day.
Counsel for appellant appeared before the commissiorier who was to take the depositions, objected to his taking them, and when the objections were overruled they refused to remain and cross-examine him. There is no reason why they could not have remained and cross-examined the witness, as the cross-examination would be limited to what was testified by the witness on direct examination. This deposition and the oral testimony of appellee Goldstein clearly warranted the findings made. Whether, in view of the 'fact that, the government is in no wise prejudiced by this decree, as all it asked in its suit against Glubok was to cancel the order granting him naturalization, it had a right to prosecute this appeal, we do not deem it necessary to decide, as no motion to dismiss was made by appellees.
Our conclusion is that the decree entered on'October 7, 1918, should be. modified, so as to include only the part of the decree, as set out hereinbefore, and omitting all findings of fact. ' The memorandum opinion prepared by Judge Pollock contains his findings of fact, and is a part of the record of the case, and it removes all imputations on appellees contained in the original decree.
As thus modified, the decree is affirmed.
Dissenting Opinion
(dissenting). I am compelled to dissent in part on the ground that I think the depositions should have heen excluded, because taken upon notice which was insufficient under the existing circumstances. Those circumstances as shown by the record and the notices given are as follows:
A record entry at St. Douis, Mo., in the District Court, signed by
The following Monday, September 23d, the United States Attorney, the United States Assistant Attorney in charge of the case, and the Naturalization Examiner at St. Louis were served with notices to take depositions, in St. Louis, in support of the Goldstein motion. These notices were served at 11:45 and 11:50 a. m., and were for the depositions of 19 witnesses. The first deposition, William L. Sacks, was set for 1:30 p. m. of the same day, or 1 hour and 45 minutes after the first service of notice. The other 18 depositions were for 8:30 the following morning, or September 24th. On Monday, the 23d of September, the Naturalization Examiner appeared before the commissioner at the time set for the deposition of Sacks. This appearance was on behalf of the United States Attorney and the Assistant United States Attorney in charge, and also of the Naturalization Service. The appearance was expressly limited to the purpose of objecting to the taking of the depositions, and when the commissioner ruled that he had no power to pass upon the objection made, and proceeded with the depositions, the Examiner withdrew and the government declined to participate further. One element of the objection was:
‘•No modification of said decree can at this time be made by Hon. John C. Pollock. United States District Judge for the District of Kansas, and at this time while' he, the said District Judge, is sitting within the jurisdiction and district of the state of Kansas, and not in the Eastern district of Missouri.”
Another element was that the notice to take depositions was not given in ample time to enable the government to prepare therefor, and was unreasonably short, having been made, it was claimed, on the Examiner at 12:30 p. m. of that day, only an hour before the time set in the notice, and on the others at 12:35 p. m., less than an hour before such time. The objections were expressly made applicable to the 18 depositions noticed for the following morning at 8:30 o’clock. On September 24th, notices to take 2 other depositions upon that day were served—the first was set for 11a. m., with service upon the Examiner at 9:10 a. in., and upon the United States Attorneys at 1:45 p. m.; the second was set for 2 p. m., with service on the United States Attorneys at 9:40 a. m. and upon the examiner at 9:50 a. m.' The depositions proceeded upon September 23d and 24th and were completed upon those days. On September 24th, Sacks executed, filed, and served his motion for modification of the decree annulling the citizenship of
A fair summarization of the above facts affecting the depositions is as follows: Goldstein’s motion was filed in St. Louis, Mo., Thursday, September 19th; service thereof in St. Louis, Mo., Friday, September 20th; called for hearing before Judge Pollock at Kansas City, Kan., Saturday, September 21st; at that time continued to the next Thursday, September 26th, at Wichita, Kan.; service of notice in'St. Louis about noon on Monday, September 23d, for deposition to bé taken there at 1:30 o’clock that afternoon; service at the same time for 18 other depositions to be taken the following morning (September 24th) at 8:30 o’clock; service during morning of September 24th, at St. Louis, for two further depositions to be taken two and four hours later; taking of depositions of 21 witnesses under the above notices and on the two days, September 23d and 24th, in St. Louis; hearing of the cause and admission of the depositions at Wichita, Kan., two days later, September 26th. No justifying reasons appear in the record for this haste. ,1 cannot agree that these depositions were taken upon proper notice. Notice implies something more than an opportunity to be present physically, and it- is by no means clear .that these notices, as to some of the depositions, afforded even that opportunity. In my judgment, the objection to the depositions should have been sustained. The elimination of the .depositions would result in complete ahsence of all testimony as to the applicant Sacks, and leave no basis for the finding in regard to him.
In addition to the depositions, Goldstein testified orally at the hearing, and his testimony afforded sufficient basis for the finding in his favor. •