
    NEW ENGLAND FURNITURE & CARPET CO. v. WILLCUTS, Collector of Internal Revenue.
    No. 1684.
    District Court, D. Minnesota, Third Division.
    Dec. 31, 1931.
    Stevens, Stevens & Maag and L. E. Wing, all of Minneapolis, Minn., for plaintiff.
    M. W. Goldsworthy, Sp. Ally., Bureau of Internal Revenue, of Washington, D. C., for defendant.
   NORDBYE, District Judge.

The above action was commenced on March 30, 1927, for the recovery of income and excess profit taxes, which plaintiff contends were paid by it in error and without taking the full credits allowed to it by law. On January 12, 1928, a demurrer was filed, but the demurrer has never been argued. This matter was never noticed for trial, nor was it placed on tho calendar pursuant to any notice of trial served by the respective .counsel. Apparently, negotiations were pending in the Treasury Department and both parties deemed it advisable to abide tho action of the Treasury Department before pressing this matter for trial.

The rules of the United States District Court for the District of Minnesota pertinent to the question presented on this motion axe as follows:

“Rule 15. Trial Calendar

“1. At least eight days before any term of court, a party desiring a cause to be placed on the calendar for trial or argument, shall file with the clerk a notice of trial, designating the term at which the cause is to be tried and containing the title of the action and the names of the attorneys, with proof of service thereof upon the opposing counsel; and no cause (except such as have been continued) shall be placed on the calendar unless such notice of trial is filed as aforesaid.

“2. All eases on the trial calendar shall remain thereon until the issues then joined are determined, except that eases which remain upon the trial calendar two terms without being heard or tried, shall, when the next calendar is made by the clerk, be left off, unless another notice of trial is filed and served, as in eases going on the calendar for the first time.

“3. All eases which have been at issue for one year or more, or in which no advancement has been made in the pleadings for a period of one year, shall he placed upon the calendar by the clerk, upon 30 days’ notice to all counsel of record, and such eases shall be either tried or dismissed, unless the court, for good cause shown, shall order some other disposition.

“4. The elerk shall, as early as practicable before each term, prepare a calendar of all cases proper to be placed upon the calendar for that term, and, before the commencement thereof, he shall mail a notice to counsel in each case that such ease will be upon the calendar.”

It appears that another action was pending brought by the same plaintiff against the United States of America, No. 1683 Law, which was commenced at the same time as the action herein, and sought to recover the same taxes that plaintiff contends were paid in error. No answer had been filed in case No. 1683, and it appears that that ease also- was held in abeyance pending a reconsideration by the Treasury Department of plaintiff’s claim. On October 26, 1928, however, a notice was sent by the elerk of court to the attorneys in case No. 1683, notifying the parties to appear on November 7, 1928, and. show cause why said ease should not be forthwith finally disposed of by entry of judgment or decree, or other appropriate action. On November 7, 1928, ease No. 1683 was stricken from the calendar. On October 25, 1929, a similar ’ order was issued and served in ease No. 1683 returnable November 5, 1929. This action on the part of the clerk apparently occasioned a letter to be written by the attorney for the Bureau of Internal Revenue, copy of which is as follows:’

“Treasury Department

“Bureau of Internal Revenue

“Washington

“424 Post Office Building,

Saint Paul, Minnesota,

“October 29, 1929.

“MRG/OTT

“Llewellyn P. Wing, Esq.,

1100 Builders Exchange,

Minneapolis, Minnesota.

“In re:- New England Furniture & Carpet Company v. Willeuts, No. 1684 Law, and New England Furniture & Carpet Company v. The United States of America, No. 1683 Law.

“Dear Sir: Reference is made to the above entitled eases and to your letter of October 28, 1929, in regard thereto. You are informed that there is no desire upon the part of the District Attorney’s office to press these cases for trial so long as there is a possibility of the same being settled in Washington.

“We are enclosing herewith originals and copies of two stipulations, and if thev are agreeable to you we would request that you sign the originals and return them to this office so that the same may be filed with the Clerk of the Court. It is felt that the statements in these stipulations will better inform the Court as to the situation existing in these cases than the two that were forwarded by you.

“Respectfully,

“M. W. Goldsworthy

“Ends. Special Attorney Bureau of Internal Revenue”

In pursuance to that letter, stipulations were entered into in cases Nos. 1683 and 1684, stipulations being worded the same, and the one entered into in the case now under.consideration reads as. follows:

“United States District Court District of Minnesota, Third Division

“No. 1684

“New England Furniture & Carpet Company, a corporation, Plaintiff, vs. Levi M. Willeuts, as Collector of Internal Revenue,’ Defendant

“Stipulation

“It is hereby stipulated and agreed, by and between the parties hereto, through their respective attorneys, that this casé may be continued generally, pending an investigation by the Treasury Department of certain facts with regard to the issues in this case. It is further stipulated and agreed that should the Treasury Department again reject the claim of the plaintiff herein, the defendant shall have thirty days in which to plead after the receipt of a written notice of rejection by the plaintiff’s attorneys-

“Llewellyn F. Wing

“Attorney for Plaintiff

“Lewis L. Drill

“Attorney for Defendant”

This stipulation was filed on November 2, 1929, and was duly entered on the docket of the clerk of court. In order to properly understand the proceedings that were taken by the clerk in the ease at bar, it is helpful to have the docket entries in both of these eases, and hereafter is set forth a complete copy of the various entries as they appear in the clerk’s docket.

“New England Furniture & Carpet Co. vs-The United States of America.

“No. 1683 Law.

“Third Division

“(Docket Entries)

“March 39, 1927 — Filed complaint and praecipe for summons Issued summons and certified" copy for service

“April 1, 1927 — Filed summons served March 31, 1927

“April 19, 1927- — Filed Affidavit of mailing complaint to Attorney General

“May 27, 1927 — Filed stipulation extending time to answer to June 30, 1927 -

“Oct. 26, 1928 — Filed Order to Show Cause

“Nov. 7, 1928 — Et’d. order striking case from calendar

“Nov. 2, 1929 — Filed stipulation continuing case generally, pending investigation by Treasury Department of certain facts and providing that should Treasury Department again reject plaintiff’s claim, defendant shall have 30 days in which to plead after receipt. •of written notice of rejection by plaintiff’s attorneys

“Nov. 5, 1929 — Et’d. order of continuance

“April 1, 1930 — Et’d. order of dismissal (no appearance)

■“New England Furniture & Carpet Co. vs. Levi M. Willeuts, Coll, of Internal Revenue.

“No. 1684 Law.

“Third Division

“(Docket Entries)

“March 30, 1927 — Filed complaint and praecipe for summons Issued summons and certified copy for service

“April 1, 1927 — Filed summons served March 31, 1927

“May 27, 1927 — Filed stipulation extending time to answer to June 30, 1927

“Jan. 12, 1928 — Filed demurrer to complaint

“Nov. 7, 1928 — Filed stipulation waiving jury

“April 2, 1929 — Et’d. continuance to Nov. 10, 1929

“Nov. 2, 1929 — Filed stipulation continuing ease generally, pending investigation by Treasury Department of certain facts and providing that should Treasury Department again reject plaintiff’s claim, defendant shall have 30 days in which to plead after receipt of written notice of rejection by attorneys for plaintiff

“April 1, 1930 — Dismissed by court (no appearance) ”

Apparently no docket entry was made of the order to show cause filed November 5, 1929, in case No. 1683, but on November 5, 1929, an order of continuance was entered in that case. The continuance was evidently made by the clerk on the strength of the stipulation hereinbefore referred to which continued this ease “generally.” In the case at bar, No. 1684, it appears that by an entry dated April 2, 1929, tho cause was continued to November 10, 1929. No order to show cause was ever issued in case No. 1684 in pursuance to section 3 of Rule 15, and the clerk had no authority to enter this ease on the calendar and continue it. The entry of April 2, 1929, was either caused by inadvertence, or confusion on account of the similarity of these two cases.

The stipulation filed by the parties attempting to continue these eases would not prevent the clerk from sending notices as provided in section 3 of Rule 15, in that there had been no advancement in the plead-iugs for more than one year. However, there is no explanation whatsoever as to the manner in which case No. 1684 was ever put upon the calendar, and, clearly, the clerk was in error in entering this case on the calendar for the April, 1930, term, which brought about the dismissal by the court for the reason that there was no appearance. Plaintiff now seeks .to have the order dismissing cáse No. 1684 vacated, and tho sole question presented to this court is whether or not tho court has lost jurisdiction to entertain that motion, in view of the fact that the term in which the order dismissing the action has now expired. This motion was brought in September, 1931. Without question, this court has lost jurisdiction to entertain this motion unless the facts presented come within the exception to tho general rulo that, after the term has ended, all final judgments and decrees, of the court pass beyond its control. , The rule and the exception to it is well stated in Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. Mr. Justice Miller delivered the opinion of the court, and on page 415 of 104 U. S., 26 L. Ed. 797, he states as follows:

“In this country all courts have terms and vacations. The time of tho commencement of every term, if there be half a dozen a year, is fixed by statute, and tho end of it by the final adjournment of the court for that term. .This is the ease with regard to all tho courts of the United States, and if there be exceptions in the State courts, they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of tho courts, however conclusive in their character, aro under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be sef^ aside, vacated, modified, or annulled by that court.

“But it is a rule equally well established, that after the term has ended all final judgments and decrees of tho court pass beyond its 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 ease has passed beyond the control of the court. Brooks v. Railroad Company, 102 U. S. 107 [26 L. Ed. 91]; Public Schools v. Walker, 9 Wall. 603 [19 L. Ed. 650]; Brown v. Aspden, 14 How. 25 [14 L. Ed. 311]; Cameron v. McRoberts, 3 Wheat. 591 [4 L. Ed. 467]; Sibbald v. United States, 12 Pet. 488 [9 L. Ed. 1167]; United States v. The Brig Glamorgan, 2 Curt. C. C. 236 [Fed. Cas. No. 15214]; Bradford v. Patterson, 1 A. K. Marsh. (Ky.) 464; Ballard v. Davis, 3 J. J. Marsh. (Ky.) 656.

“But to this general rule an exception has crept into practice in a large number of the State courts in a class of cases not well defined, and about which and about the limit of this exception these courts are much at variance. An attempt to reconcile them would be entirely futile. The exception, however, has its foundation in the English writ of error eoram vobis, a writ which was allowed to bring before the same court in which the error was committed some matter of fact which had escaped attention, and which was material in the proceeding. These were limited generally to the facts that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert and the like, or error in the process through default of the clerk. See Archbold’s Practice.”

The rule limiting the jurisdiction of the court in regard to' the modification and correction of its judgments is unquestionably well founded. Judgments would never be final if courts continually retained jurisdiction over its decrees and judgments. The exception to the rule, however, is likewise well recognized, and the federal courts have long recognized the exception which gives the court 'jurisdiction to modify its judgment after the term for errors in fact in analogy to the practice of writs of error eoram vobis, or eoram nobis.

The distinction between a general writ of error and a writ of error eoram nobis or vobis is set forth in Stephen’s Pleading (Tyler’s 3d Amer. Ed.) 142:

“A writ of error, like an original writ, is sued out of chancery, directed to the judges of the court in which judgment was given, and commanding them, in some cases, themselves to examine the record; in others, to send it to another court of appellate jurisdiction to be examined, in order that some alleged error in the proceedings may be corrected. The first form of writ, called a writ of error eoram nobis (or vobis), is where the alleged error consists of matter of fact; the second, called a writ of error generally, where it consists of matter of law.”

“Where an issue in fact has been decided, there is * * * no appeal in the English law from its decision, except in the way of motion for a new trial; and its being wrongly decided is not error in that technical sense to which a writ of error refers-So, if a matter of fact should exist, which was not brought into issue, but which, if brought into issue, would have led to a different judgment, the existence of such fact does not, after judgment, amount to error in the proceedings. * * ‘ But there are certain facts which affect the validity and regularity of the legal decision itself. * * * Such facts as these, however late discovered and alleged, are errors in fact, and sufficient to traverse the judgment upon writ of error. To such cases the writ of error coram nobis applies; ‘because the error in fact is not the error of the judges, and reversing it is not reversing their own judgment.’ ”

The question is also discussed in United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Justice Hughes wrote the opinion of the court, and on page 67 of 235 U. S., 35 S. Ct. 16, 19, 59 L. Ed-129, states as follows: “In the absence of 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,, unless the proceeding for that purpose was begun during that term. Hudson v. Guestier, 7 Cranch, 1, 3 L. Ed. 249; Cameron v. M’Roberts, 3 Wheat. 591, 4 L. Ed. 467; Ex parte Sibbald, 12 Pet. 488, 492, 9 L. Ed 1167, 1169; Bank of United States v. Moss, 6 How. 31, 38, 12 L. Ed. 331, 334; Bronson v. Schulten, 104 U. S. 410, 415-417, 26 L. Ed. 797, 799, 800; Phillips v. Negley, 117 U. S. 665, 673, 674, 6 S. Ct. 901, 29 L. Ed. 1013-1015; Hickman v. Fort Scott, 141 U. S. 415, 12 S. Ct. 9, 35 L. Ed. 775; Hume v. Bowie, 148 U. S. 245, 255, 13 S. Ct. 582, 37 L. Ed. 438, 440; Tubman v. B. & O. R. R. Co., 190 U. S. 38, 23 S. Ct. 777, 47 L. Ed. 946; Wetmore v. Karrick, 205 U. S. 141, 149-152, 27 S. Ct. 434, 51 L. Ed. 745, 748-750; In re Metropolitan Trust Co., 218 U. S. 312, 320, 321, 31 S. Ct. 18, 54 L. Ed. 1051, 1054, 1055. There are certain exceptions. In the case of courts of common law, — and we are not here concerned with the special grounds upon which courts of equity afford relief, — the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors, and, in civil cases, to rectify such mistakes of fact as were reviewable on writs of error eoram nobis, or- eoram vobis, for which the proceeding by motion is the modern substitute. Pickett’s Heirs v. Legerwood, 7 Pet. 144, 148, 8 L. Ed. 638, 639; Matheson’s Adm’r v. Grant’s Adm’r, 2 How. 263, 281, 11 L. Ed. 261; Bank of United States v. Moss, supra; Bronson v. Schulten, supra; Phillips v. Negley, supra; In re Wight, 134 U. S. 136, 10 S. Ct. 487, 33 L. Ed. 865; Wetmore v. Karrick, supra. These writs were available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon, and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment, — for, it was said, ‘error in fact is not the error of the judges, 'and reversing it is not reversing their own judgment.’ So, if there were error in the process, or through the default of the clerks, the same proceeding might be had to procure a reversal. But if the error were ‘in the judgment itself, and not in the process,’ a writ of error did not lie in the same court upon the judgment, but only in another and superior court.”

Proceeding by the ancient writ of error eoram nobis has now been largely abandoned for the more modern and expeditious procedure of bringing a motion and proceeding by notice of motion. Consequently, if the relief asked for by plaintiff in this motion is one that was recognized by the writ of error coram nobis, plaintiff’s motion should be granted even though the term of court in which the judgment of dismissal was entered has ended. In modern practice, the writ of error coram nobis may be defined as a common-law writ issuing out of a court of record to review and correct a judgment of its own relating to some error in fact as opposed to error in law, not appearing on the face of the record, unknown at the time without fault to the court and to the parties seeking relief, but for which the judgment would not have been entered.

£3] The court has already indicated that ease No. 1684 was placed on the calendar through the error of the clerk, and if such error constitutes a clerical mistake, or clerical error, cognizable by the writ of error coram nobis, then plaintiff’s motion should be granted. The term “clerical error” has been used somewhat loosely in decisions, and there may be dicta in some of the cases which would indicate that it is limited to error in transcribing figures, or the addition of figures, or mere misprision. However, I can see no good reason for limiting the interpretation - of that term within narrow confines and arbitrary definitions.

In an early case found in 12 Wheat. (U. S.) 1, 6 L. Ed. 531, entitled The Palmyra, Justice Story stated on page 9 as follows: “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 practico of other judicial tribunals in like eases.” The language just quoted has been criticized because it is rather sweeping in its scope, and the facts in the ease cited indicate that the action had in fact been dismissed on account of a clerical mistake. An appeal had been taken in the Palmyra Case, but, due to the error of the clerk, the appeal was dismissed because in the opinion of the court there was not any final decree within the meaning of the act of Congress. The clerk had failed to include in the record the amount of damages that had been assessed, and the court considered that the damages were but an incident to the principal decree, and that the cause was but a single one, and that it could not be at the same time in the Circuit Court for the purpose of assessing damages, and the Supreme Court upon appeal; consequently, the appeal was dismissed, but when it was later discovered that damages had been awarded, and the failure to appear in the record was due to the error of the clerk, the appeal was reinstated after the term had expired.

The case of Wetmore v. Karrick, 205 U. S. 141, 27 S. Ct. 434, 51 L. Ed. 745, discusses the Palmyra Case, and on page. 155 of 205 U. S., 27 S. Ct. 434, 438, 51 L. Ed. 745, is found the following language: “The Palmyra, like every other ease, 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 ease dismissed by mistake. It is evident that he had in mind, for he says so, that the first dismissal was for a clerical mistake, which is a well-recognized ground for correcting judgments at subsequent terms, upon notice and proper showing.”

Plaintiff has not been guilty of any laches. It did not learn of the dismissal until September, 1931, and it then proceeded with due diligence in bringing this motion. Apparently, it was of the opinion that the stipulation of continuance protected it without the necessity of inquiry as to the status of the record. No notice had- ever been sent by the clerk as required by section 3 of Rule 15, or by section 4 of Rule 15. It would .seem that the case at bar discloses “errors in matters of fact which, had not been put in issue or passed upon, and were material to the validity and regularity of the legal proceeding itself.” U. S. v. Mayer, supra. The court naturally assumed that the ease was properly on the calendar. The error of the clerk was unknown to the court. - The court presumed it had jurisdiction to dismiss this case because no appearance was made by either party at the regular calendar call. The court is not asked to reverse its own judgment. The error in fact is not the error of the judge. The clerical mistake of the clerk affected the regularity and validity of the court’s decision. It Seems, therefore, that the error of the clerk in improperly placing this case on the calendar is- to all intent and purposes the same kind of a clerical error that was found in the Palmyra Case, when the clerk failed to include in the record the damages that had been assessed in the Circuit Court. The -plaintiff could, of course, file a bill” in equity and obtain the same relief, but it seems an unduly cumbersome procedure to require, such- steps to be taken in view of the undisputed facts in this case. - Furthermore, even though- the facts in the case at bar do not, with a refining exactness, come within the category of a “clerical mistake,” it would seem that the mistake or default caused by the clerk fairly comes within the purview of the relief granted by the writ in question. The ends of justice require the decision herein indicated, and, in- the court’s opinion, no violence is done to the limitation of jurisdiction to which this court is subjected.

Upon all the files and records herein, it is therefore ordered that plaintiff’s motion be and hereby is in all things granted, and the judgment of dismissal entered on April 1, 1930, be vacated and set aside.  