1. During the term when it is rendered or entered of record, a
judgment or an order, however conclusive in its character, is under
the control of the court pronouncing it, and may then be set aside,
vacated, or modified.
2. After that term, unless steps be taken during its continuance
by motion or otherwise, errors in a final judgment can only be
corrected by an appellate court.
3. To this rule there is an exception. The writ of error
brought before the court of original
jurisdiction certain mistakes of fact not put in issue or passed
upon, such as that a party died before judgment, or was a married
woman, or was an infant and no guardian appeared or was appointed,
or that there was error in the process through the default of the
clerk. It did not lie, however, to correct errors in the judgment
itself. The relief thereby sought is, in modern practice, attained
by motion, supported when necessary by affidavits.
4. Neither the practice of the state courts in exercising a
control over their own judgments and administering equitable relief
in a summary way nor the statutes of the states, can determine the
action of the courts of the United States on this subject.
5. In this case, the carelessness and laches of the plaintiffs
preclude, under any rule, the setting aside of the judgment after
the term at which it was rendered.
Page 104 U. S. 411
MR. JUSTICE MILLER delivered the opinion of the Court.
On the twenty-sixth day of January, 1877, the following order
was made of record in the court below:
"J. W. SCHULTEN ET AL."
"GREENE C. BRONSON and 22 other Causes"
"A motion having come on to be heard before this court in the
above-entitled causes to open the judgments therein:"
"Now, on reading and filing notice of motion dated Dec. 27,
1876, and affidavits annexed of Almon W. Griswold and A.
Heydenreich on the part of the plaintiffs, and Almon W. Griswold
having been heard for the motion on the part of the plaintiffs, and
George Bliss, Esq., U.S. District Attorney, in opposition thereto,
and due deliberation had, it is ordered that the judgments entered
in the above-entitled causes upon the verdicts therein be vacated,
and that the assessment of the plaintiffs' damages under the
verdicts in said causes be referred to John I. Davenport, Esq., as
"And it is further ordered that the referee proceed to adjust
the plaintiffs' damages under said verdicts in
accordance therewith, and from the amounts found due, if any, he
deduct the sums paid upon the judgment heretofore entered in each
of said cases, respectively, and that he report the balance, if
any, found due the plaintiffs in each of said cases."
"The said referee shall give notice to the attorneys of the
respective parties of the time and place of hearing therein, and
either party may, on the hearing, raise objections, and said
referee shall decide thereon, and either party may file exceptions
to such decision of the referee within two days after the filing of
the referee's report, and bring them to a hearing before the court
upon four days' notice."
"Dated Jan. 26, 1877."
March 8, 1877, another order was made that the action be
continued in the name of Lucretia Bronson, executrix of the
Page 104 U. S. 412
will of Greene C. Bronson, who had died in 1863. March 10 the
referee's report was filed, in which it was found that there was
due plaintiffs, in addition to what had been paid under the
judgment set aside, the sum of $1,205.90, and on this sum interest
was allowed to the amount of $2,017.21. For these sums, with added
costs, a judgment was rendered in their favor. To reverse this
judgment the present writ of error is brought.
Enough of the record of the original suit, the judgment in which
is thus set aside, is produced before us to show that the action
was against Bronson, as collector of customs for the port of New
York, and the claim was for duties in excess of what was authorized
by law on a large number of separate importations; that a verdict
was given on the trial for plaintiffs for
"the amount, with interest, of the difference between duties
levied and paid under protest, on commissions at two and one-half
per cent, and such duties if levied on commissions at two per
on the class of importations in question. The commissions
alluded to were those paid by the importers before shipment to this
country. As the amount to be recovered under this verdict was
matter of computation and inspection of the custom house papers, it
was referred to Samuel Ogden to make report.
Neither the judgment of the court which was set aside, nor the
report of Ogden, on which that judgment must have been entered, nor
the plaintiffs' bill of particulars, on which the action was based,
is found in the transcript of the record on which we are to
consider this case. Nor is there any bill of exceptions, as there
should have been, embodying the evidence on which the court acted
in setting aside the former judgment. Nor is the date of that
judgment to be ascertained from anything in this record, unless we
can look at certain affidavits found in the transcript, for neither
the notice of the motion to set it aside nor the order granting
that motion mention the date of that judgment. It would seem that a
party seeking to open or set aside a judgment seventeen years after
it had been entered and the amount of it paid, in order that
another judgment for a larger amount might be rendered in the same
suit, was not very anxious to call attention to dates.
This imperfect state of the record has made us hesitate to
Page 104 U. S. 413
enter upon a review of the case, but as the order setting aside
the original judgment refers to the notice of motion and the
annexed affidavits as the foundation of that order, and identifies
those papers as they are found in the transcript, we are of opinion
that they may be considered as part of the record so far as the
question of the authority of the court to make that order is
Looking to these affidavits in connection with what is more
strictly a part of the record, it appears that the original suit
was commenced in one of the state courts Sept. 2, 1858, and
afterwards removed into the circuit court of the United States,
where plaintiffs filed a declaration containing the common counts.
It appears that they also served a bill of particulars, setting out
seventy-four entries of goods at the custom house, on which they
had been charged excessive duties by the defendant Bronson, which
they had paid under protest. The affidavit of Murray, a refund
clerk in the custom house, states that in thirty-four of these
entries, the sums which should have been allowed plaintiffs were
omitted in the adjustment. It was on this statement that the
judgment rendered on the report of the first referee, Ogden,
without objection or exception on either side, on the fifth day of
August, 1860, was set aside and a new reference made. This
judgment, it appears, was also paid and accepted by plaintiffs in a
few days, we may suppose, after it was rendered. The affidavit of
plaintiffs' attorney, who attended to the original action and on
whose motion the original judgment was set aside, states that the
adjustments were made by Ogden, who was an auditor at the custom
house, and by the collector of customs, and by the clerk of the
court; that in 1864 he discovered that certain errors had been
committed in fourteen other cases of a similar character, in which
other persons were plaintiffs, to their prejudice, for which new
actions were commenced, and held barred by the statute of
limitations; that as to other cases, including the one now before
us, he did not discover that items embraced in the bill of
particulars had been omitted until an investigation of certain
recent cases of like character against Collector Redfield; that in
the readjustment of these latter cases, his attention was turned to
the source of the errors in the one now in question.
Page 104 U. S. 414
The affidavits of Heinrich and Murray tend to show that all was
not included in the adjustment under the verdict that ought to have
We have thus a case in which plaintiffs sue for excessive
charges on account of these commissions paid on seventy-four
entries of goods, specifically set out in their bill of
particulars. A verdict is rendered in their favor fixing the
precise error under a which the excessive duty had been exacted,
and leaving to a referee to ascertain the amount due on each of
these entries. The referee reports as to all but thirty-four,
nearly half, of these entries, and as to them makes no report. A
judgment is rendered in conformity to the report, the money paid
and accepted, and seventeen years afterwards the judgment is opened
to correct the omission of these thirty-four entries.
We are of opinion that if there was any mistake in the report of
the referee and in the judgment rendered thereon, it was so clearly
due to the negligence and inattention of plaintiffs or their
attorney that no case is made for relief in any of the modes known
to the law of correcting an erroneous judgment after the term at
which it was rendered.
Stress is laid upon the fact in argument that the referee was
one of the clerks in the custom house who had access to all the
books and papers of the office. It is probable he was selected by
both parties because of his familiarity with those accounts, but he
is not mentioned in the order of reference as such clerk or
officer. Any other person so appointed would have been permitted to
examine the necessary books and papers, and in this matter he must
be held to be, as no doubt he was, an impartial referee,
representing neither the collector nor the government which was to
pay the sum found due.
The plaintiffs had the same right to appear before him, examine
his report and the evidence on which it was founded, to take and
urge to the court exceptions to it, as in case of any other
reference. Nothing of the kind was done, and though it is here said
that no report at all was made as to thirty-four out of
seventy-four entries set out in plaintiffs' bill of particulars, no
exception was made to the report on that ground, nor any inquiry
made as to the reason for such omission. It is
Page 104 U. S. 415
obvious that if this had been done, the error which is now
complained of would have been corrected before the report of the
referee was confirmed and judgment rendered on it.
If, then, there was no question of lapse of time or of the power
of the court over its own judgments after the term at which they
are rendered, and if this were a bill in chancery to set aside this
judgment on the ground of mistake, it is clear that no relief could
be granted, because of the negligence, carelessness, and
inattention and laches of he plaintiffs or of their attorney in the
Does the power of the court over its own judgment, exercised in
a summary manner on motion, after the term at which it was
rendered, extend beyond this?
In this country, all courts have terms and vacations. The time
of the commencement of every term, if there be half a dozen a year,
is fixed by statute, and the end of it by the final adjournment of
the court for that term. This is the case with regard to all the
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 the courts,
however conclusive in their character, are 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 set 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 the 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 case has passed beyond the control of the court.
Brooks v. Railroad Company, 102 U.
; Public Schools v.
Page 104 U. S. 416
9 Wall. 603; Brown v.
14 How. 25; Cameron v.
3 Wheat. 591; Sibbald v.
12 Pet. 488; United States v.
The Brig Glamorgan,
2 Curt.C.C. 236; Bradford v.
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 coram vobis,
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
like, or error in the process through default of the clerk.
In Rolle's Abridgment, p. 749, it is said that if the error be
in the judgment itself, a writ of error does not lie in the same,
but in another and superior court.
In Pickett's Heirs v.
7 Pet. 144, this Court said that the
same end sought by that writ is now in practice generally attained
by motion, sustained, if the court require it, by affidavits, and
it was added this latter mode had so far superseded the former in
the British practice that Blackstone did not even notice the writ
as a remedy.
It is quite clear upon the examination of many cases of the
exercise of this writ of error coram vobis
found in the
reported cases in this country, and as defined in the case in this
Court above mentioned and in England, that it does not reach to
facts submitted to a jury or found by a referee, or by the court
sitting to try the issues, and therefore it does not include the
There has grown up, however, in the courts of law a tendency to
apply to this control over their own judgments some of the
principles of the courts of equity in cases which go a little
further in administering summary relief than the old-fashioned
Page 104 U. S. 417
writ of error coram vobis
did. This practice has been
founded in the courts of many of the states on statutes which
conferred a prescribed and limited control over the judgment of a
court after the expiration of the term at which it was rendered. In
other cases, the summary remedy by motion has been granted as
founded in the inherent power of the court over its own judgments,
and to avoid the expense and delay of a formal suit in chancery. It
can easily be seen how this practice is justified in courts of the
states where a system has been adopted which amalgamates the
equitable and common law jurisdiction in one form of action, as
most of the rules of procedure do.
It is a profitless task to follow the research of counsel for
the defendants in error through the numerous decisions of the state
courts cited by them on this point in support of the action of the
circuit court. The cases from the New York courts, which go
farthest in that direction, are largely founded on the statute of
that state, and we are of opinion that on this point neither the
statute of that state nor the decisions of its courts are binding
on the courts of the United States held there.
The question relates to the power of the courts, and not to the
mode of procedure. It is whether there exists in the court the
authority to set aside, vacate, and modify its final judgments
after the term at which they were rendered, and this authority can
neither be conferred upon nor withheld from the courts of the
United States by the statutes of a state or the practice of its
We are also of opinion that the general current of authority in
the courts of this country fixes the line beyond which they cannot
go in setting aside their final judgments and decrees, on motion
made after the term at which they were rendered, far within the
case made out here. If it is an equitable power supposed to be here
exercised, we have shown that a court of equity, on the most formal
proceeding, taken in due time, could not, according to its
established principles, have granted the relief which was given in
It is also one of the principles of equity most frequently
relied upon that the party seeking relief in a case like this
Page 104 U. S. 418
must use due diligence in asserting his rights, and that
negligence and laches in that regard are equally effectual bars to
As we have already seen, nothing hindered the plaintiffs from
discovering the mistake of which they complain for seventeen years
but the most careless inattention to the proceeding in which they
had claimed these rights and had them adjudicated.
There was here an acquiescence for that length of time in the
correctness of a judgment which had been paid to them, when the
error, if any existed, only needed a comparison of their own bill
of particulars with the report of the referee to be seen, or at
least to be suggested. Having been negligent originally, and having
slept on their rights for many years, they show no right, under any
sound practice of the control of courts over their own judgments,
to have that in this case set aside.
It follows that the judgment of the circuit court must be
reversed with directions that the order vacating the former
judgment be set aside and the motion of plaintiffs in that matter
NOTE -- Bronson v. Loeschigk, Bronson v. Warburg, Bronson v.
Grossman, Redfield v. La Chaise,
and Redfield v.
were brought by writ of error to the same court and
argued at the same time as was the preceding case.
MR. JUSTICE MILLER, in giving the opinion of the Court, stated
that they were governed by the principles announced in that case,
and that in each a judgment would be entered reversing that of the
circuit court with directions to set aside the order vacating the
original judgment and to overrule the motion on which that order