*1 sacri- personal willing make the LITTLE, Appellant, Charles M. her daily care of necessary fice v. custody child, sought small and convenience; and JOHNSON, Appellee. her Lenza when it suited best her lost had mother such conduct No. 2227. circum- these Under preferential status. Appeals cus- denial stances, I think do not District of Columbia. she finding required a to her tody July 21, Submitted real think I person. presently a fit 6, Decided Nov. The welfare. child’s question was the from child take the court found that mother him to his

Jurneys and return painful” “unnecessarily and cruel

would be would its welfare the child and that custody by awarding

best served Jur- to be ought not

neys. I think such

disturbed. distin- case is present my

In view the U.S. Leonard, 102 v. Bell

guishable 890, because 179, 251 F.2d

App.D.C. “mother’s that case in reference child.” her obtain efforts to

persistent efforts here. persistent no such

There and case cited applies same

The People case, namely, in Bell upon

relied Shepsky, N.Y. Kropp rel. v.

ex is the same 801, where there

113 N.E.2d efforts “persistent the mother’s

reference custody.” I think we And regain its Portnoy People ex rel. note that

should 539, 104 N.E.2d Strasser, 303 N.Y.

v. upon in the Bell relied also cited significant state- made the

case, parent where a is this case “Nor

ment: long for a relatives child with left

has it back.” seeks then custody place of children involving

Cases responsibility judge, on the trial awful fully has and fair- been where reached, I a decision do not heard

ly disturb decision un- should we

believe clearly appears that resulted from

less I no see such error law. error affirm. and would

this case *2 C., Leak, Washington, D. M. James on the same date in favor entered appellant. of the defendant Noble who was appellee. appearance No *3 automobile driver of this codefendant’s at the time of this accident.” ROVER, Judge, and Chief Before QUINN, Judges. Associate HOOD and appeal We allowed an from this order. QUINN, Judge. Associate Appellant’s position that the is Appellant’s in a car was involved trial court was without to va by an collision with automobile owned 19, cate the default entered on December by pellee Noble. He and driven one Simon upon We that 1957. the basis which in the and Con brought suit Small Claims judge attempted proceed the was Municipal Branch of the Court ciliation 60(a) Municipal unsound. Rule of the Noble, appellee seeking against both and provide Court Civil Rules does clerical damages in the sum of On December $45. arising mistakes in record from the over 19, 1957, appeared, successfully Noble de may sight by or omission be corrected the him, against and obtained fended the action initiative, any court at time of its own in favor of the con finding his because original entry but it is clear that the tributory appellant. Appel negligence of default was not “clerical mistake.” The appearance. At conclu lee made no the entry any was not the result of defect in case, sion of the after the for transcription but was an accurate reflection Noble, by judgment the court ordered a at of the court’s decision If appellee, default which was entered as entry, making was error in the it there was jacket. shall treat on We this the judicial error of law and not a clerical jacket entry simply an en Consequently, the court error.2 had no fully rather try of default than a matured entry authority vacate on this judgment, although actual the notation ground. read, ly “Judgment by [ap default vs. pellee],” it original is clear that the claim justified action be Can court’s on unliquidated for an amount was which was any Appellant other basis? contends that proof subject parte before it could ex any power in if court has this instance proof No become final.1 such was ever of default, it must vacate fered. Municipal Court Civil Rule come provides relief which from final later, four and one-half Some months on judgments orders in certain circum- and 1958, May 3, following entry was made urges that stances. He three-month by sponte: on the docket the court sua time in the is limitation contained 19, “Entry 1957, here, of December applicable as to and since default vs. Defendant four and months act until one-half after Lenza vacated entry, vacating is because of its order the default Johnson error, appearing clerical of record was invalid. Municipal 39, successfully employs Court Civil Rule § See a defense which ants (b). (A) (a) personal to him but common to all is not defendants, such a defense inures to point defaulting note at this that was We in of a defendant. the benefit Here, an error of law for the court fact to or- defense of contribu- the successful against ap- tory negligence der the of a default used Mr. Noble was pellee, subsequently appellant’s as the court realized entire cause such as to defeat attempted consequently appellee, action, to correct. As sot out annotation, gen- default, though 78 A.L.R. was entitled to its ben- eral rule is that if one of several defend- Mr. Noble. efit as well as indicated, rule, have As we read

As we this the effect of it is to only was make even an (cid:127)of December interlocutory entry of de- there default, judgment, and a final in the subject interlocutory order. simply fore it restrictions Rule patent 60(b), a in- plenary consistency that a court has general The rule is between the two interrelated rules, prior power any to final since Rule 60(b), by at time terms, its own applicable equitable inter any revision of an make judgments and or- hand, the Despite ders. On the other locutory order.3 this apparent conflict it is grant relief from that the a court to framers 55(c) of Rule intended *4 lim generally orders is this judgments (cid:127)final or result consequently we will enforce cause. it. time This distinction ited as to by the and observed various recognized (cid:127)is Turning to present case, the it is which Procedure Civil Federal Rules of clear that power the court’s grant relief provide from actions of dis for relief the interlocutory from its entry of default of of de Specifically,in the case trict courts. 19, 1957, December plenary, was not aas U.S.C.A., fault, 55(c), Rule 28 Federal federal power district court’s

n reads would be in as follows: situation, the subject same but was to the shown good “For cause the court restrictions of Rule 60(b). If any there is entry and, default may aside of set an of subsection Rule 60(b) which will author default has en- judgment by been if a ize relief in judicial the of a error of tered, it in ac- may likewise set aside law, it the is first subsection under the 60(b).” Rule cordance with heading, “Mistake.”5 Assuming without deciding that the court can act under this power a federal district court Thus the initiative,6 on subsection its own it is by default is restrict- to vacate a parent the that court’s order vacating the circumstances and ed to enumerated the entry of default in this instance was invalid by established Rule (cid:127)time limitations because relief must sought be under this power aside an de- but its set months, within subsection three and the requirement that only limited the court here not act four until and one- a it be exercised within reasonable entry. half months after the Conse conceivably longer than the be which could quently the of default of December timeallowed under 60(b). Rule 19, 1957, must stand. comparable However, the rules of We cannot with the view Municipal are not Court identical. (cid:127)the dissenting opinion taken in the the 55(c) Civil Rule states: fact that the trial court almost immedi ately shown the good cause court initial “For after its took decision the case and, default set aside under consideration any without notice by default has been en- parties was if a of the sufficient juris confer aside, tered, may set it likewise both the Presumably, diction on court. rea 4 Rule 60.” why with son accordance makers wished to make 4.For Moore’s in its of the (2nd ed. John Simmons Co. L.Ed. some reason 258 U.S. entirety Municipal Court Civil Buies. 1955). Federal 475; as Bule 82, 88-89, see the discussion in this rule also Practice, v. Grier Bros. 42 S.Ct. Section § 60.16 appears A(f) Co., ^[4] 7 5. See Practice, particular rule is the court power “on motion It will to act sua be discussion in § noted 60.22[8] reference * * may grant that the rule states sponte. specifically given (2nd 7 Moore’s Federal Nowhere in the ed. party 1955), allowable relief with only subject to interlocutory of default control of a interlocutory entries court over orders 60(b) Rule was because its the restrictions of relieve from judg- felt, policy, de- ments. it a matter of to be type of this sirable to clothe However, present that in believe finality which surrounds order with the case the court had set aside dissenter’s of the judgment. The effect appears It default.1 from the policy and

position thwart would this statement proceedings and evidence that acting power, when on more give the court very day on the the court ordered the initiative, if it have own than would entry, a doubt in the arose mind of made acting a motion on court as to its correctness and the court sua parties party. court informed Had the sponte took the matter under consideration. when proposed reconsideration of its The court appellant should have notified advisement, such first took case under done, that this was being especially in view act, motion, would have like a formal length of the of time the matter was under running to arrest been sufficient consideration, but fact remains that it *5 notice, we think such but absent was 60(b) under consideration. If Rule right regard the appellant had the any application here, has it should be re- of default in his favor as final. membered that the time limitations of that apply only filing of motion Reversed. and not to action the court on such motion. HOOD, Judge Associate (dissenting). When court ordered agree judgment I that the de- immediately default and almost thereafter with statement of the amount questioned action, no the correctness of its was not final court, they confusing rules as nothing be, than an prevent more en- taking the matter default; try agree I that the require under or consideration a de- judicial error and not from particular resulted cision reached within a I that the rules error. also already clerical since the matter was And under apparently Municipal Court intend consideration, did not need mo- entry of default be that relief from tion to the same effect within the three- the restrictions of Rule granted period under month order have the judg- relating relief from to act. When the court concluded that it ; un- think the erroneously entry, result ments had ordered had apparently ignores the error, that it fortunate to correct even between distinction long-established though it mislabeled error “clerical.” jurisdiction, Foundry Co., D.C.Mun.App., then the court had If the & 112 A.2d vacating the default was order pealable. Harco, Greenville Steel Inc. v.