v. Barton, 154 Mass. 159, 28 N. E. 148, | The Glamorgan, 2 Curt. C. C. 236, Fed. Cas. where previous cases are cited in the No. 15,214; Bradford v. Patterson, 1 A. K. opinion. Marsh, 464; Ballard v. Davis, 3 J. J. Marsh, 656." At common law a writ of error coram vobis brought before the court certain mistakes of fact not put in issue or passed upon, such as the death of a party, coverture, infancy, error in process, or mistake of the clerk. This writ is no longer in use, but its objects are attained by motion. Pickett v. Legerwood, 7 Pet. 145, 147, 8 L. ed. 638, 639. As in the common-law writ of coram vobis, so in the proceeding by motion, after a party has been dismissed from the action by judgment he is brought again into the court by notice of the new proceeding. Ferris v. Douglass, 20 Wend. 626. In discussing the exceptions to this rule for the correction of judgment by writ of error coram vobis, or motion, now substituted for the old practice, the only one which has application here is error in the process through the default of the clerk. We are unable to find in the present record any clerical mistake. The entry of action during the year upon the bill of exceptions appears to have been duly entered upon the minutes of the court; the clerk made no mistake about it. The court exroneously rendered a judgment, believing that no action had been taken, but this was A few of the cases from this court may not through mistake or oversight of the be noticed which support the general clerk within the meaning of the rule. The proposition that, at the end of the term at judgment intended to be entered by the which judgment was rendered, the court court was, in fact, entered,-through misloses jurisdiction of the cause. The princi-apprehension, it is true; but nothing was ple was briefly stated by Mr. Chief Justice left out which the court intended to make a Waite, speaking for the court, in Brooks v. matter of record. Burlington & S. W. R. Co. 102 U. S. 107, 26 L. ed. 91: “At the end of the term the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that, we can do no more than correct any clerical errors that may be found in the record of what we have done." The question underwent a full discussion, Mr. Justice Miller delivering the opinion of the court, in Bronson v. Schulten, 104 U. S. 410, 26 L. ed. 797. On page 415, L. ed. p. 799, he said: "But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond aits control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and, if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court, that, while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Burlington & S. W. R. Co. supra; St. Louis Public Schools v. Walker, 9 Wall. 603, 19 L. ed. 650; Brown v. Aspden, 14 How. 25, 14 L. ed. 311; Cameron v. M'Roberts, 3 Wheat. 591, 4 L. ed. 467; Sibbald v. United States, 12 Pet. 488, 9 L. ed. 1167; United States v. In Hickman v. Ft. Scott, 141 U. S. 415418, 35 L. ed. 775, 776, 12 Sup. Ct. Rep. 9, 10, there was a petition to correct by new findings the special findings of fact upon which the court had rendered a judgment at a former term, which findings, it was averred, had been omitted, some unavoidably and others accidentally; but the application was overruled and error was prosecuted to this court, which, speaking through Mr. Justice Harlan, said: "The judgment was the one the court intended to enter, and the facts found were those only which the court intended to find. There is here no clerical mistake. Nothing was omitted from the record of the original action which the court intended to make a matter of record. The case, therefore, does not come within the rule that a court, after the expiration of the term, may, by an order nunc pro tuno, amend the record by inserting what had the court. Re Wight (Wight v. Nicholson) been omitted by the act of the clerk or of 134 U. S. 136, 144, 33 L. ed. 865, 10 Sup. Ct. Rep. 487; Fowler v. Equitable Trust Co. 141 U. S. 384, 35 L. ed. 786, 12 Sup. Ct. Rep. 1; Galloway v. McKeithen, 27 N. C. (5 Ired. L.) 12, 52 Am. Dec. 153; Hyde v. Curling, 10 Mo. 359." This case from 10 Missouri was quoted with approbation also in the case of Re Wight (Wight v. Nicholson) 134 U. S. 136, 145, 33 L. ed. 865, 869, 10 Sup. Ct. Rep. 487, 490, as follows: "A court has power to order entries of proceedings had by the court at a previous term to be made nuno pro tune; but, where the court has omitted to make an order which it might or ought to have made, it cannot, at a subsequent term, | as Mr. Justice Story distinctly says, from be made nunc pro tunc." a "misprision of the clerk,"-a recognized exception to the general doctrine of conclusiveness of the judgment after the term, and there is no indication that the correction made in that case was made without notice to the party interested. The adverse party was present and resisted the order, so there was opportunity to be heard. In the case Re Wight this court approved an order of the circuit court of the United States putting in the record at a subsequent term an order which was made at a previous term of the court, remanding the case to the district court. "A clerical error, as its designation imports, is an error of a clerk or a subordinate officer in transcribing or The Palmyra Case has been cited a num. entering an official proceeding ordered by ber of times since in the course of opinions another." Marsh v. Nichols, S. & Co. 128 not involving the precise proposition, to U. S. 605, 615, 32 L. ed. 538, 542, 9 Sup. Ct. the effect that the court "may reinstate a Rep. 168, 171. cause at a subsequent term, dismissed by mistake." Sibbald v. United States, 12 Pet. 492, 9 L. ed. 1169. of another alleged exception to the general rule of finality of judgments, counsel for plaintiff in error says, after conceding the general rule that jurisdiction is lost after the lapse of the term at which judgment is rendered: "But a well-known exception to this general rule is that a judgment of dismissal based upon a mistake or inadvertence, such as appear in this record, can be set aside after the term, and that is the proposition with which this court is concerned in this case. The reason is that jurisdiction is not lost by a dismissal by a mistake. This is one of the exceptions to the general rule that has been recognized in the decisions of this court for nearly a century." To support this contention the case of The Palmyra, 12 Wheat. 1, 6 L. ed. 531, is relied upon. In that case, which was one in admiralty, the court found there was no final decree in the court below, and, therefore, it was not appealable. The next term of the court a corrected transcript was adduced, showing there had been a final decree which the clerk, through mistake, had failed to include in the record, and the court permitted the filing of a new transcript. Mr. Justice Story, delivering the opinion of the court, said: "The difference between a new appeal and a reinstatement of the old appeal after a dismissal, from a misprision of the clerk, is not admitted by this court justly to involve any difference of right as to the stipulators. Every court must be presumed to exercise those powers belonging to it which are necessary for the promotion of public justice; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake. The reinstatement of the cause was founded, in the opinion of this court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases." It was cited to the proposition that a court might correct misprision of clerks. Bank of United States v. Moss, 6 How. 38, 12 L. ed. 334. In 21 How. 85, 16 L. ed. 32, Rice v. Minnesota & N. W. R. Co., an opinion delivered by Mr. Chief Justice Taney, it was held that at common law, where a case upon error proceedings had been dismissed for want of jurisdiction, it could not be reinstated at a subsequent term upon a showing that the final judgment below, for want of which the case was dismissed, had been accidentally omitted from the record as a production of the correct record showed. In the case The Palmyra Case was relied upon in support of the motion, but the court declined to follow it in a common-law case, and limited its application to the jurisdiction of an appellate court in admiralty cases, which, the Chief Justice said, was much wider than in a case at common law. In the case of Alviso v. United States, 6 Wall. 458, 18 L. ed. 721, a case dismissed for want of citation at a former term, omitted to be returned from neglect of the clerk, was reinstated upon the authority of The Palmyra; but in that case Mr. Justice Nelson, speaking for the court, distinctly stated that the omission in The Palmyra Case was the error of the clerk in making out the transcript, and there is no reference to the general authority of the court to reinstate a case dismissed by mistake, regardless of the character of the omission or error. The Palmyra, like every other case, must be read in the light of the point decided in the case, and in considering the language of Mr. Justice Story, who spoke of the general power of the court to reinstate a case dismissed by mistake, it is evident that he had in mind, for he says so, that the It is to be observed, while the learned first dismissal was for a clerical mistake, justice, speaking for the court in that case, which is a well-recognized ground for coraffirmed the "power of this court to rein-recting judgments at subsequent terms, state any cause dismissed by mistake," the upon notice and proper showing. case had been dismissed at the first hearing, The plaintiff in error also cites Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013, 6 Sup. I nevertheless the decision of the case rests Ct. Rep. 901. That case contains an em- upon the emphatic denial of the power of phatic statement of the doctrine that a the court to set aside a judgment upon judgment at law cannot be reversed or an- motion made after the term and grant a nulled after the close of the term at which new trial, except in the limited class of it was entered by the court rendering the cases enumerated as reached by the previous judgment, for errors of fact or law, with the practice under writs of error coram vobis, exceptions which we have heretofore noted. or for the purpose of correcting the record In that case Negley had been sued in the according to the fact where mistakes have supreme court of the District of Columbia occurred from the misprision of the clerk. upon a certain order. Negley answered, de- We content ourselves with repeating the nying his liability, and asserting that he doctrine of this recent decision, without resigned the order only as agent; denied also capitulating previous cases in this court, in that plaintiff was the holder of the order, which the point has been noticed, for the or notice of nonpayment. After issue joined purpose of showing their harmony. It has on the pleas, on April 3, 1879, Negley not been the uniform doctrine of this court. appearing, a jury was called, and verdict No principle is better settled,' it was said found for the plaintiff, upon which judg-in Sibbald v. United States, 12 Pet. 488, ment was rendered. On September 4, 1882, Negley filed his motion to vacate the judgment and set aside the verdict rendered against him ex parte, because of irregularity, fraud, and deceit, and the negligence of his attorney. Affidavits were filed in support of this motion, setting forth a denial of Negley's personal liability on the order; that he was served with process when temporarily in Washington, being then and since a resident of Pittsburg; that he employed counsel and filed his defense, but received no further notice from the fall of 1874 until July 26, 1882, when he was sued on the judgment in Allegheny county, Pennsylvania; that plaintiff took no notice of the plea filed in the original case until May 3, 1877; that in the meantime, without defendant's knowledge, his counsel had removed from Washington, leaving him without counsel, as plaintiff and his counsel well knew, and on April 3, 1879, without notice, and while Negley was ignorant of the proceeding, called for a jury and procured the verdict and judgment against him. Other testimony was taken, and after hearing on December 2, 1882, the supreme court of the District set aside the verdict because of "irregularity, surprise, fraud, and deceit," and granted a new trial. In this court the judgment of the supreme court was reversed for error in entertaining and granting the motion to set aside the judgment, and the cause was remanded, without prejudice to Negley's right to file a bill in equity. After citing and quoting from the Bronson Case (104 U. S. 410, 26 L. ed. 797), Mr. Justice Matthews, who delivered the opinion of the court, said: "Although the opinion [Bronson Case] also shows that upon the facts of that case the action of the circuit court in vacating its judgment after the term could not be justified upon any rule authorizing such relief, whether by motion or by bill in equity, 492, 9 L. ed. 1167, 1169, 'or of more universal application, than that no court can reverse its own final decrees or judgments for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes (Cameron v. M'Roberts, 3 Wheat. 591, 4 L. ed. 467; Bank of Commonwealth v. Wistar, 3 Pet. 431, 7 L. ed. 731), or to reinstate a cause dismissed by mistake (The Palmyra, supra); from which it follows that no change or modification can be made, which may substantially vary or affect it in any material thing. Bills of review, in cases in equity, and writs of error coram vobis at law, are exceptions which cannot affect the present motion.'” The case just cited is relied upon because of its reference to The Palmyra. But the point to which that case is cited was not involved. As we have seen, it had already been limited in Rice v. Minnesota & N. W. R. Co. 21 How. 85, 16 L. ed. 32, to appeals in admiralty. Further, that case, as we have seen, was one of clerical mistake in making up the record. We therefore find nothing in the previous decisions of this court justifying the contention of the plaintiff in error as to the right to correct the judgment of the previous term, in view of the character of the error sought to be corrected, and more especially in the attempt, under the circumstances shown in this record, to set aside a judgment of a former term, and render a new and different judgment without notice to the party who had been dismissed by a former judgment. As we have seen, the question here involved pertains to a case where no notice is given and a new and different judgment is entered at a subsequent term. It is urged when the necessary facts appear in the record such correction can be made without notice, because, it is said, there is nothing to litigate. But aside from the fact that this proposition ignores the rule that juris 158 *159 We find nothing in any decision of this court which sanctions any different procedure, and the cases in the state courts which hold that notice is necessary after the term before a judgment can be set aside are numerous. Some of them will be found in the note in the margin.t diction once lost can only be regained by | judgment is set up against him in another some proper notice, the case at bar is an forum. illustration that such action may impair the substantial right of a party to be heard against the rendition of a new judgment against him. Had notice been given, the defendant could have availed himself of his right to plead his discharge in bankruptcy by proper proceedings for that purpose. Loveland, Bankr. 783. It may be that he did not lose all right to avail himself of the discharge in some other manner, but he had the right to show that, in view of his discharge, the judgment in question ought not to be rendered against him. To sanction a proceeding rendering new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate the fundamental principles of due process In Capen v. Stoughton, 16 Gray, 364, of law as we understand them, and do cited by plaintiff in error, a sheriff's jury in violence to that requirement of every system condemnation proceedings by mistake signed of enlightened jurisprudence which judges a verdict in favor of the municipal corpo-after it hears, and condemns only after a ration instead of the property owners. The party has had an opportunity to present his court held this a mistake of a merely formal defense. By the amendment and new judg and clerical kind; and “when no action has ment the proceedings are given an effect been taken on an order or judgment, and against the defendant in error which they the rights of parties to the proceeding or did not have when he was discharged from those of third persons cannot be affected them by the judgment of dismissal. By unjustly by the correction of an error, the the judgment of dismissal the court lost court has power to order an action to be jurisdiction of the cause and of the person brought forward and a judgment to be of the defendant. A new judgment is vacated in order that an entry may be personam could not be rendered against the made in conformity with the truth." defendant until, by voluntary appearance or due service of process, the court had again acquired jurisdiction over him. As a matter of common right, before such action could be taken he should have an opportunity to There is no suggestion that such action can be "brought forward" without notice to the adverse party, or a correction made where, as in the present case, the party has lost a valuable right in reliance upon a judg-be heard and present objections to the ren ment of dismissal. And if it be held that the mistake in this case, though not of the clerk, was of a clerical character, and within the rule permitting the correction of such mistakes by the court, a point unnecessary to decide in this case, such a correction cannot be made after term without notice, certainly where the changed condition of the parties in view of a new right acquired would render it prejudicial to render a new judgment. The plaintiff in error also relies upon the proposition that the Massachusetts statute (Revised Laws of Massachusetts, chap. 193, § 22) provides that if a judgment is rendered in the absence of the petitioner, and without his knowledge, a writ of review may be granted upon petition filed within one year after the petitioner first had notice of the judgment; otherwise, within one year after the judgment was rendered. But we cannot agree that this remedy supplied the want of jurisdiction in the Massachusetts court to render, after the term and without notice, a new and different judgment against the defendant in error. Whatever his remedy may be in the state courts, want of jurisdiction may be pleaded wherever the dition of a new judgment, if such existed. We find no error in the judgment of the Court of Appeals overruling the demurrer to the second plea, and the same is affirmed. Mr. Justice Brewer took no part in this case. (205 U. S. 135) THOMAS R. MARTIN, Plff. in Err, The apportionment of the cost of widen. +Murphy v. Farr, 11 N. J. L. 186; Martin v. Bank of State, 20 Ark. 636; De Witt v. Monroe, 20 Tex. 289; Berthold v. Fox, 21 Minn. 51; Cobb v. Wood, 8 N. C. (1 Hawks) 95; Hill v. Hoover, 5 Wis. 386, 68 Am. Dec. 70; Perkins v. Hayward, 132 Ind. 95, 100, 31 N. E. 670; Bryant v. Vix, 83 II. 11, 15; Keeney v. Lyon, 21 Iowa, 277; Weed v. Weed, 25 Conn. 337; Fischesser v. Thomp son, 45 Ga. 459, 467. *137 ing an alley in the city of Washington | estate and also is to "apportion an amount upon the property lying within the square equal to the amount of said damages so through which such alley runs must be ascertained and appraised as aforesaid," limited to benefits, where the jury of award, including fixed pay for the marshal and although directed by the act of July 22, jury, "according as each lot or part of lot 1892 (27 Stat. at L. 255, chap. 230), as amended by the act of August 24, 1894 (28 of land in such square may be benefited Stat. at L. 501, chap. 328), to apportion an by the opening, widening, extending, or amount equal to the damages ascertained straightening such alley," with certain deand appraised, is to apportion such amount ductions. The amendment authorizes the "according as each lot or part of lot in such commissioners to open minor streets, to run square may be benefited." through a square, etc., whenever, in the judgment of said commissioners, the public interests require it. [Nos. 190, 191.] The law is not a legislative adjudication Argued January 29, 1907. Decided March concerning a particular place and a particu I 11, 1907. N ERROR to the Court of Appeals of the District of Columbia to review judgments affirming judgments of the Supreme Court of that District, quashing writs of certiorari to test the validity of assessments for the widening of an alley in the city of Washington. Reversed. See same case below, No. 190, 26 App. D. C. 146; No. 191, 26 App. D. C. 140. The facts are stated in the opinion. Messrs. Edwin C. Brandenburg, George E. Sullivan, and Clarence A. Brandenburg for plaintiffs in error. Messrs. Francis H. Stephens and Edward H. Thomas for defendant in error. * Mr. Justice Holmes delivered the opinion of the court: lar plan, like the one before the court in ent is said to be a flagrant instance of that It These are writs of certiorari to test the validity of assessments for the widening of an alley in Washington under the act of Congress of July 22, 1892, chap. 230 (27 Stat. at L. 255), as amended by the act of August 24, 1894, chap. 328 (28 Stat. at L. 501). The writs were quashed by the supreme court of the District and the judgments affirmed by the court of appeals. 26 App. D. C. 140, 146. The principal case is that of Brandenburg, the owner of land taken for the widening. That of Martin raises questions as to the rights of a mortgagee of the same land. The main issue is upon the constitutionality of the act. The statute authorizes the commissioners of the District to condemn, open, widen, etc., alleys upon the presentation to them of a plat of ing the benefit grows large, and the amount the same accompanied by a petition of the of the not improbable excess is great, it owners of more than one half of the real may not follow that the case last cited will estate in the square in which such alley is be a precedent. Constitutional rights like sought to be opened, etc., or in certain other others are matters of degree. To illustrate: cases. After prescribed preliminaries the Under the police power, in its strict sense, commissioners are to apply to the marshal a certain limit might be set to the height' of the District to impanel a jury of twelve of buildings without compensation; but to disinterested citizens, and the marshal is make that limit 5 feet would require compento impanel them, first giving ten days' no- sation and a taking by eminent domain. tice to each proprietor of land in the square. So it well might be that a form of assessThe jury is to appraise the damages to realment that would be valid for paving would But when the chance of the cost exceed. |