170 F. 676 | S.D.N.Y. | 1909
It seems quite unnecessary to elaborate the views expressed in the previous Mansour Case, 170 Fed. 671, regarding proceedings of this nature.
It was, and still is, my opinion that the proceeding is one in the nature of a bill in equity to set aside a judgment. But it does not follow that all the formalities of equity procedure must be observed. Nor is it important to try to assign the petition which the act of Congress (Act June 29, 1906, c. 3592, § 15, 34 Stat. 601 [U. S. Comp. St. Supp. 1907, p. 427]) provides for to the category either of ai complaint at common law or a bill in equity. In form it is neither, being exactly what the act calls fpr, a petition; and the petition in this case seems to me to set up the necessary statutory facts. Because the requisite proof must (perhaps) be of the kind and force which would be required to set aside a judgment, it does not follow that the issue under which such proof is to be adduced must be framed in the manner prescribed either by common law or equity procedure. The act leaves the court to model the procedure in any way that seems
The form followed in this case is approved, and the demurrer overruled.
