254 F. 211 | N.D.N.Y. | 1918
In 1912,. a special agent of the Treasury Department of the United States actually seized 65 cases of glove leather which had been imported, into the United States from Germany on the ground same had been fraudulently undervalued. The goods before such seizure were in the actual possession of one Joseph Bondy at Gloversville, N. Y., in the Northern district, who was the acting agent of Karplus '& Herzberger, of Germany, and who were the owners, consignors, and importers.
An agreement was entered into between such importers, represented by Mr. Bondy and the United States, acting through the Treasury Department, by which $6,000 was to be and was deposited by such importers with the collector of customs at Albany, N. Y., Northern district of New York, as representing such goods and in place of same and as representing their maximum value, and which agreement contained the following:
“In event of any judgment of forfeiture or otherwise being obtained, or in event that any liability arising from the importation of said merchandise shall accrue to the United States, in so far as the said sum of $6,000 may be applicable, it shall be applied to the satisfaction in settlement of such liability or judgment.”
The United States, acting by the agent of the Treasury, thereupon relinquished and surrendered possession of the said glove leather to
On the 16th day of January, 1914, this action was commenced for the forfeiture of such glove leather on the grounds same had been undervalued and a writ was issued. Same was returned with the following return indorsed thereon by the United States marshal:
“Not executed by direction of United States attorney. The claimant has filed a bond for Sf>,000 to cover any damages which the government might recover, and the defendants’ property was returned to them.”
The said $6,000 was then in the hands of the United States under the agreement referred to. From November 10, 1914, when issue was joined, until about February, 1918, no further action was taken. In the meantime another case had been pending, involving some of the question involved in this case, and there had been a change in the office of the United States attorney for the Northern district of New York.
On the 14th day of November, 1917, this court, on its own motion, made and entered a general order during the continuance of the October term held at Auburn, N. Y., wherein and whereby it was—
“Ordered, that in all cases at law now pending in the Northern district of New York, or hereafter docketed and pending, and where action is not stayed or enjoined by a court or a judge of competent jurisdiction, in which no action has been or is taken by the attorneys or parties, or either of them, within the two years last past, or following such docketing in cases hereafter docketed, the same bo dismissed for want of prosecution, without prejudice, and that the clerk enter in the docket of such cases the words ‘Dismissed W. P.,’ which shall mean dismissed without prejudice: Provided, however, that on application and motion of either party, and for cause shown, such cause so dismissed may be revived, and i1s prosecution resumed or continued ; and provided, further, that such ‘dismissal W. P.’ in such cases shall not make the clerk of this court responsible” for certain fees, etc.; “it appearing that such docket fee is not taxable until the case is finally disposed of,” etc.
The reason for this order and the action of the clerk under it was to clear the docket of the court of old and stale cases many of which had been settled or otherwise disposed of, but which appeared on the docket of the court to be live cases. It is apparent from the order itself that it was not the purpose to finally dispose of the cases, or to enter any final judgment or order of dismissal, but to- leave such cases open to be proceeded with on a proper showing. It is true no provision was inserted in the order continuing the term or terms at or during which such entries on the docket of the court might be made. No formal orders of dismissal were made.
“But it is a rule equally well established that after the term has euded all final judgments and decrees of the court pass beyond its control,” etc.
In United States v. Mayer, 235 U. S. 55-67, 35 Sup. Ct. 16, 19, 59 L. Ed. 129, the court said:
“In the absence of a statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered,” etc.
The docket entry of dismissal in the instant case as fully appears by the order pursuant to which made was not a “final” dismissal or judgment or disposition of the case, nor was it intended to be. On the other hand, it was expressly provided in the order that the action might be revived, and its prosecution proceeded with and continued, on application and showing -made. The purpose was to clear the docket of stale cases, but not to deprive the parties of the right to be heard and to proceed with their cases, if the court so- ordered. The power of the court to deprive the parties of such right may well he questioned. I think it a strained construction to hold that such dismissal was a final judgment in the case, .and that such is not the effect of the action taken. The other questions raised on this motion should not be now disposed of, except that of laches.
There will be an order vacating the dismissal and restoring the case to the docket for trial in due course on due notice.