
    CANNING v. HACKETT et al.
    District Court, D. Massachusetts.
    May 5, 1933.
    James H. Vahey and Edwin J. Owens, both of Boston, Mass., for plaintiff.
    Abbott & Carroll, Daniel J. Lyne, and Dyne, Woodworth & Evarts, all of Boston, Mass., for defendant John J. Haekett.
   BREWSTER, District Judge.

The plaintiff has filed a motion to restore this case to the docket. . It involves the vacating of an order dismissing the action under rule 34 of this court for want of prosecution.

The facts appearing in the affidavit and assumed in argument are these:

On November 28, 1928, the action was brought in the state court. The action was duly removed to this court on January 23, 1929. James H. Vahey appeared as attorney of record for the plaintiff. No action having been taken for two years prior thereto, on January 29, 1932, an order was entered dismissing the bill under rule 34. Pri- or to January 23, 1932, James H. Vahey had died, but his practice was taken over by his son, with whom he was associated in the practice of law at room 1107, 18 Tremont street, Boston. Notice of the order was sent to James H. Vahey, as attorney of record, addressed to room 1107,18 Tremont street. The plaintiff retained other counsel in March, 1933, and first learned of the order dismissing the case when his attorney discovered the fact, shortly before the motion to restore was filed.

The material portion of rule 34, under which the order was entered, is as follows:

“34. Dismissal of Old Cases. On the first business day of January in each year, all pending cases on the law, equity and civil dockets in which no action shall have been taken during the two years next preceding shall be dismissed without prejudice and without costs for lack of prosecution, or disposed of by other appropriate order. Notice of orders entered under this rule shall be sent by mail or delivered in hand by the clerk to counsel of record or to parties in each such case. * * •

Provided, further, that any case dismissed under this rule may for good cause shown be revived and restored to the docket upon motion filed on or before March first and after due notice to parties.”

Defendant objects to the allowance of this motion on two grounds: First, that the court is without power to vacate the order after the expiration of the term of the court during which it was entered, and, second, if the court has the power it ought not to exercise it because the plaintiff has failed to pursue his remedy with due diligence.

In my opinion both objections are well taken. The general rule is that a final judgment cannot be vacated or modified after the expiration of the term during which it is entered. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797; Tubman v. Baltimore & Ohio R. R. Co., 190 U. S. 38, 23 S. Ct. 777, 47 L. Ed. 946: Phillips v. Negley, 117 U. S. 665, 6 S. Ct. 901, 29 L. Ed. 1013; Sibbald v. United States, 12 Pet. 488, 9 L. Ed. 1167; Brooks v. Railroad Company, 102 U. S. 107, 26 L. Ed. 91; Wetmore v. Karrick, 205 U. S. 141, 27 S. Ct. 434, 51 L. Ed. 745.

A motion to dismiss for want of prosecution is a final judgment. Hamilton Coal Company v. Watts (C. C. A.) 232 F. 832; United States v. Chin Dong Ying (D. C.) 229 F. 813.

There are, however, exceptions to the general rule. These exceptions were noted in United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 19, 59 L. Ed. 129, where it is stated that in the ease of courts of common law in civil cases the court has power at a subsequent term “to rectify such mistakes of fact as were reviewable on writs of error eoram nobis, or coram vobis, for whieh the proceeding by motion is the modem substitute.”

Here the order dismissing the action was not predicated on any mistake of fact. There is no suggestion -that any action had been taken in the ease during the preceding two years. Under the rule, it was ripe for dismissal when the order was entered. Nor was there any evidence of clerical error or omission or any defect in the form of judgment whieh might bring the ease within the exception to the fixed rule. Under these circumstances, it seems to be well settled that this final disposition of the ease cannot be now disturbed by any order to vacate the judgment of January 29, 1932. United States v. Chin Dong Ying, supra. See, also, Loewe v. Union Savings Bank (D. C.) 222 F. 342; Fairmont Creamery Co. v. Minnesota, 275 U. S. 70, 48 S. Ct. 97, 72 L. Ed. 168.

I am persuaded upon the authorities that this court had not the power to set aside, vacate, or modify this final judgment after the term at which it was rendered. It has been held that authority to do this can neither be conferred upon nor withheld from courts of the United States by the practice of the state courts. Bronson v. Schulten, supra, at page 417 of 104 U. S., 26 L. Ed. 797.

If, however, it were a matter of discretion, I should be compelled to deny the motion to restore the case to the docket. The failure of the plaintiff to pursue his remedies in this court for a period of over four years displays such a want of diligence that he cannot, with propriety, ask the court now to entertain his suit.

Granting that those who succeeded to the practice of the attorney of record were remiss in notifying the plaintiff of the dismissal of his. suit, such negligence cannot excuse the failure of the plaintiff to exercise reasonable diligence in obtaining new counsel or seeing to it that some action was taken in the ease.

Plaintiff’s motion to restore the case to the docket of the court is denied.  