The Bank of the United States v. Moss , 47 U.S. 31 ( 1847 )

  • 47 U.S. 31 (____)
    6 How. 31


    Supreme Court of United States.

    *33 The cause was argued by Mr. G.M. Wharton and Mr. Sergeant, for the plaintiffs in error, no counsel appearing for the defendants in error.

    *36 Mr. Justice WOODBURY delivered the opinion of the court.

    In this case, at the November term of the Circuit Court for the Southern District of Mississippi, A.D. 1841, a verdict was found for the plaintiffs against the defendants for $26,485.66. Final judgment was then rendered for that sum.

    At the ensuing May term, on motion of the defendants, the court set aside both the judgment and verdict, and dismissed the case for what it considered to be a want of jurisdiction.

    To this the plaintiff excepted, and a writ of error is now before us to reverse that decision.

    The first question is, whether any want of jurisdiction appears on the record.

    No evidence is reported, nor any defect apparent, which seems to raise any doubt concerning the jurisdiction, unless it be in the pleadings.

    The declaration contained the usual money counts, — beside special ones on two notes, made to Briggs, Lacoste, & Co., or their order, and by them indorsed to the plaintiffs.

    The defendants pleaded that they did not promise as alleged, and a verdict was found against them, without any statement being given of the evidence laid before the jury or the court, though copies of the two notes named in the declaration are printed in the case.

    The various questions which this state of the record presents, and which bear upon the jurisdiction, can, when analyzed and separately considered, be disposed of chiefly by adjudged cases, without any labored examination of the principles involved. The special counts on the notes standing alone might not be sufficient, under the 11th section of the Judiciary Act, to give jurisdiction to a Circuit Court of the United States, without an allegation that the promisees resided in a different State from the promisors. Turner v. Bank of North *37 America, 4 Dall. 8; and 9 Wheat. 539; Dromgoole et al. v. Farmers' & Merchants' Bank, 2 How. 243; and Keary et al. v. Farmers' & Merchants' Bank of Memphis, 16 Peters, 95.

    But it is very clear, that the money counts aver enough to give jurisdiction to the court below over them, as they state an indebtedness and a promise to pay, made directly by the defendants to the plaintiffs. Mollan v. Torrance, 9 Wheat. 539; Bingham v. Cabbot, 3 Dall. 41.

    It is well settled, likewise, that the notes would at the trial be evidence of money had even of an indorsee. 4 Es. Ca. 201; 7 Halsted, 141; 6 Greenl. 220; 12 Johns. 90; 8 Cowen, 83; Wild v. Fisher, 4 Pick. 421; Webster v. Randall, 19 Pick. 13; Ramsdell v. Soule, 12 Pick. 126; Ellsworth v. Brewer, 11 Pick. 316; 16 Pick. 395; State Bank v. Hurd, 12 Mass. 172; 15 Mass. 69, 433; Page's Administrators v. Bank of Alexandria, 7 Wheat. 35; 2 Wm. Bl. 1269.

    But they probably would not alone be sufficient, by the 11th section of the Judiciary Act, to give jurisdiction over them to a Circuit Court of the United States, under these money counts any more than the others, without additional evidence that the original promisees resided in a different State from the promisors. (7 Wheat. 35 semb.)

    No decision, however, is made on this point, as from this record we cannot learn but that such additional evidence was given, or that other evidence than the notes was not introduced in support of the money counts.

    It is not competent for this court now to presume that neither of these kinds of evidence was offered beside the notes. The inference, on the contrary, is the other way, or the defendants would probably have objected to the jurisdiction at the trial, and the jury not found a verdict for the plaintiffs, or the court not have rendered judgment upon it.

    In the next place, if such a state of things did happen as there having been no additional or other evidence, it is clear from the record, that no advantage was taken of it till after final judgment, and at the following term of the court, and then by motion only.

    But it was then too late, after final judgment, and at the next term, and by motion only, to set aside the judgment and verdict on account of a supposed want of jurisdiction. At the next term, if no final judgment had yet been rendered, the court might, from its minutes, have had the verdict applied to the counts on which it was in truth found. 2 Howard, 263; 2 Saund. 171, b; Tidd's Pr. 901.

    And if, in this case, it was found on the two special counts alone, the judgment on the verdict might then have been arrested *38 for want of proper averments in them conferring jurisdiction.

    So it might have been arrested for a misjoinder of bad counts with good, if the verdict had not been applied to the latter, but remained general. Hopkins v. Beedle, 1 Caines's Rep. 347; 5 Johns. 476; 1 Chit. Pl. 236, 448; 1 Taunt. 212; 2 Bos. & Pul. 424; Cowp. 276; 3 Wils. 185; 2 Saund. 171, b; 3 Maul. & Selw. 110; Doug. 722.

    But here jurisdiction did appear on three of the counts, and also final judgment had been rendered in November previous.

    The action was not regularly on the docket at the new term in May following, when the court undertook to set the judgment aside. The power of the court over the original action itself, or its merits, under the proceedings then existing, had been exhausted, — ended. Jackson v. Ashton, 10 Peters, 480; Catlin v. Robinson, 2 Watts, 379; 12 Peters, 492; 3 Bac. Abr. Error, T. 6; Co. Lit. 260 a; 7 Ves. 293; 12 Ves. 456; 1 Stor. P. 310; 1 Hoff. Pr. 559; 2 Smith, Ch. 14; 9 Peters, 771; 3 Johns. 140; 9 Johns. 78; Kelly v. Kezir, 3 Marsh. R. 268.

    This means the power to decide on it, or to change opinions once given, or to make new decisions and alterations on material points. A mere error in law, of any kind, supposed to have been rendered in a judgment of a court at a previous term, is never a sufficient justification for revising and annulling it, at a subsequent term, in this summary way, on motion. See cases ante; 2 Gall. 386; Cameron v. McRoberts, 3 Wheat. 591; 2 Haywood, 237; Skinner v. Moor, 2 Dev. & Bat. 138; Wash. Bridge Comp. v. Stewart, 3 How. 413; and Jackson et al. v. Ashton, 10 Peters, 480; Lessee of Hickey et al. v. Stewart, 3 How. 762; Henderson v. Poindexter, 12 Wheat. 543; Elliot et al. v. Piersol et al., 1 Peters, 340; Wilcox v. Jackson, 13 Peters, 511; Rose v. Himely, 4 Cranch, 241.

    We would not be understood by this to deprive a court, at a subsequent term, of power to set right mere forms in its judgments. 3 Wheat. 591; 3 Peters, 431; 12 Wheat. 10; Lawrence v. Cornell, 4 Johns. Ch. 542. Or power to correct misprisions of its clerks. The Palmyra, 12 Wheat. 10; Hawes v. McConnel, 2 Ohio, 32; 1 Greenl. 375; Com. Dig. Amendment, T. 1. The right to correct any mere clerical errors, so as to conform the record to the truth, always remains. Sibbald v. United States, 12 Peters, 492; Newford v. Dorsey, 2 Wash. C.C. 433; 6 Watts, 513; 8 Watts, 424; 1 Wendell, 101; 4 Wendell, 217; 1 Bibb, 324; 2 Bibb, 88; Weston's case, 11 Mass. 417; The Bank v. Wistar, 3 Peters, 431. Irregularities, also, in notices, mandates, and similar proceedings can still, in some cases, be amended. Ex parte Crenshaw, 15 Peters, 123.

    *39 Indeed, any amendments permissible under the Statutes of Jeofails may be proper at subsequent terms (2 Tidd's Pr. 917; 2 Arch. Pr. 202, 243); and at times even after a writ of error is brought. 2 How. 243; 3 Johns. 95; Poph. 102; Pease v. Morgan, 7 Johns. 468; Cheetham v. Tillotson, 4 Johns. 499; 1 Johns. Ca. 29; 2 Johns. 184; 1 Bing. 486; Douglass v. Bean's Executors, 5 Bing. 60. So it is well settled, that at a subsequent term, when the judgment had before been arrested, an amendment may be made to apply the verdict to a good count if another be bad and the judge's minutes show that the evidence applied to the good count. (Matheson's Adm. v. Grant's Adm., 2 How. 282, and cases cited there.)

    So a mistaken entry of a mandate, in a case where the parties were not at all before the court, may be revoked at a subsequent term, the hearing having been irregular and a nullity. Ex parte Crenshaw, 15 Peters, 119; 14 Peters, 147. But no cause of this kind appears here in the proceedings, and nothing else appears to justify the court in going back to a final judgment of a previous term and summarily setting it aside for an error in the law or the facts, and dismissing the whole case from the docket.

    The only relief for errors in law in such cases is usually by new trial, review, writ of error, or appeal, as either may be appropriate and allowable by law, or by some other mode specially provided by statute; where, for instance, a judgment has occurred at some previous term by default, through accident or some circumstance, which clearly entitles the party to redress. 12 Peters, 492; Jenkins v. Eldridge et al., 1 Woodb. & Minot, 65, and cases cited; Anthony et al. v. Love, 3 Ohio, 306; Bennett v. Winter et al., 2 Johns. Ch. 205; 3 Marsh. R. 268; Southgate v. Burnham, 1 Greenl. 375.

    Beside these remedies, judgments entered up by fraud may, perhaps, on due notice, by scire facias, or otherwise, be vacated at a subsequent term by the same court, or if offered in evidence be deemed a nullity, should fraud be clearly proved to have taken place. 2 Roll. Abr. 724; 2 Bac. Abr. Error, T. 6.

    But the present judgment was neither fraudulent nor void on its face, nor even voidable. Had it been rendered on the special counts alone, it might have been voidable by a writ of error, for not alleging jurisdiction in the pleadings. See ante; 2 How. 243; Capron v. Van Norden, 2 Cranch, 126. But it has been repeatedly settled, that even then, without any plea to the jurisdiction, and after a verdict for the plaintiff on the general issue and final judgment, it is not a nullity, but must be enforced till duly reversed. Kempe's Lessee v. Kennedy, 5 Cranch, 185; and Skillern's Executors v. May's Executors, 6 *40 Cranch, 267; McCormick v. Sullivant, 10 Wheat. 192; Voorhees v. Bank of United States, 10 Peters, 449; 3 Ohio, 306; Wilde v. Commonwealth, 2 Metc. 408; Hopkins v. Commonwealth, 3 Metc. 460. Because it would be a judgment rendered by a court, not of inferior, but only limited, jurisdiction, and the merits would have been investigated and decided by consent. This view is supported by the English doctrine. There, though judgments of inferior courts or commissioners are often void, when on their face clearly without their jurisdiction, and may be proved to be so and avoided without a writ of error (3 Bac. Abr. Error, A; 10 Cok. 77 a; Hawk P.C. ch. 50, sec. 3); yet the judgment of a superior court is not void, but only voidable by plea on error. Bac. Abr. Void and Voidable, C; 2 Salk. 674; Carth. 276. Even where the record of a circuit court did not contain any averments giving jurisdiction, this court has held that, at a subsequent term, after final judgment, the same tribunal which rendered it could not set it aside on motion. Cameron v. McRoberts, 3 Wheat. 591. And we have repeatedly decided as to judgments of this court, that they could not be changed at a subsequent term, in matters of law, whether attempted on motion, or a new writ of error, or appeal, on the mandate to the court below. Hunter's Lessee v. Warton, 5 Cranch, 316; 6 Cranch, 267; 1 Wheat. 354; Santa Maria, 10 Wheat. 442; Davis v. Packard, 8 Peters, 323; 9 Peters, 290; 12 Peters, 491, 343; 15 Peters, 84.

    Without going further, then, into the reasons or precedents against the course pursued in the court below, the last judgment there, on the motion, must be reversed, and the case be reinstated as it stood before.


    This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court on the motion dismissing this case be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to reinstate this case as it stood in that court before the said judgment dismissing the case.