Where a declaration contained special counts upon promissory
notes, and also the common money counts, although the jurisdiction
of the court was not apparent upon the special counts, yet the
money counts, sustained by evidence, might have been sufficient to
sustain it, and this Court will presume such evidence to have been
given if the record is silent upon the subject and if no objection
was made to the jurisdiction in the progress of the trial.
Judgment having been rendered for the plaintiffs, it was not
competent for the court below to strike out the judgment at the
next term on the ground of supposed want of jurisdiction.
The power of a court over its records and judgments examined and
stated.
In 1838, the two following notes were executed,
viz.:
"$10,715 53/100
Brandon, March 17, 1838"
Nine months after 1 April, 1838, we, or either of us, promise to
pay to Briggs, Lacoste & Co., or order, for value received, ten
thousand seven hundred and fifteen 53/100 dollars, payable and
negotiable at the Commercial Bank in Natchez.
"H. K. Moss"
"W. H. SHELTON,
Sec'y"
"R. A. PATRICK"
"CHARLES LYNCH"
"Endorsed, 'Briggs, Lacoste & Co.'"
"$10,876 92/100
Brandon, March 17, 1838"
"Eleven months after 1 April, 1838, we, or either of us, promise
to pay to Briggs, Lacoste & Co., or order, for value
received,
Page 47 U. S. 32
ten thousand eight hundred and seventy-six 92/100 dollars,
payable and negotiable at the Commercial Bank in Natchez."
"H. K. Moss"
"W. H. SHELTON,
Sec'y"
"R. A. PATRICK"
"CHARLES LYNCH"
"Endorsed, 'Briggs, Lacoste & Co.'"
In March, 1840, the Bank of the United States brought suit in
the Circuit Court of the United States for the Southern District of
Mississippi, against Henry K. Moss, William H. Shelton, Robert A.
Patrick, Charles Lynch, and Charles A. Lacoste. On the same day, a
declaration was filed consisting of five counts, in which all the
defendants were averred to be citizens of Mississippi. The first
two counts were upon the notes, each count being upon one note. In
the first count, the endorsement is thus averred:
"And the said Charles A. Lacoste, together with Charles Briggs
and Louis Hermann, who are not sued in this action, not being
citizens of this state, by the name and style of Briggs, Lacoste
& Co., being partners in trade, using the name and style of
Briggs, Lacoste & Co., to whom or to whose order the payment of
the sum of money in the said note,"
&c., and in the second count, upon the other note, it is
thus stated:
"And then and there delivered the same to said Briggs, Lacoste
& Co., and the said Briggs, Lacoste & Co, of which firm the
said defendant, Charles A. Lacoste, is a partner, the rest not
being citizens of this state, to whom or to whose order the payment
of the sum of money in the said note specified was by the same to
be made, after the making of the said note, and before the payment
of the said sum of money therein specified, to-wit, on the day and
year last aforesaid, and at the district aforesaid, endorsed the
same note in writing, by the name of Briggs, Lacoste &
Co.,"
&c.
The other three counts in the declaration were the common money
counts.
The defendants all appeared, and pleaded the general issue.
At November term, 1841, on motion of the plaintiffs' attorney,
the suit was discontinued as to Lacoste, and a jury, being
empanelled, found a verdict for the plaintiffs, assessing the
damages at $26,485.66, for which sum judgment was entered up.
At May term, 1841, the defendants, by their counsel, moved the
court to set aside the verdict and judgment rendered in the cause
because the court had not jurisdiction, which motion was sustained.
The verdict and judgment were set aside and the case dismissed for
want of jurisdiction, to which decision the plaintiffs filed the
following bill of exceptions.
Page 47 U. S. 33
"Be it remembered, that at the present term of this Court, the
defendants in the above case came into court and moved the court to
set aside the verdict and judgment in this case rendered at the
last term of this Court, and to dismiss the suit for want of
jurisdiction of the court; which motion is in the words and figures
following:"
"The defendants by their attorney move the court to set aside
the verdict and judgment rendered in this cause, and to dismiss the
suit, because the court had not jurisdiction of the cause."
And thereupon came the plaintiffs and objected to said motion,
but the court, without any evidence other than the record in said
cause, sustained the said defendants' motion, and ordered said
verdict and judgment rendered in this case at the last term of this
Court to be set aside, and the suit dismissed, to which opinion of
the court in sustaining said motion, and setting aside said verdict
and judgment, and dismissing said suit, the plaintiffs by their
counsel except, and pray that this their bill of exceptions be
signed, sealed, enrolled, and made a part of the record in this
cause, which is done accordingly.
"J. McKINLEY [SEAL]"
Upon which exception, the cause came up to this Court.
Page 47 U. S. 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 endorsed 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
Page 47 U. S. 37
America, 4 Dall. 8; and
22 U. S. 9
Wheat. 539;
Dromgoole v. Farmers'
& Merchants' Bank, 2 How. 243; and
Keary v. Farmers' &
Merchants' Bank of Memphis, 16 Pet. 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 endorsee. 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.
20 U. S. 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.
43 U. S. 2 How.
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
Page 47 U. S. 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 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 Pet. 480;
Catlin v. Robinson, 2
Watts 379;
37 U. S. 12
Pet. 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
Pet. 771; 3 John. 140; 9 John. 78; Kelly v. Kezir, 3 Marsh.
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 v.
Ashton, 10 Pet. 480;
Lessee
of Hickey v. Stewart, 3 How. 762;
Henderson v.
Poindexter, 12 Wheat. 543;
Elliot
v. Piersol, 1 Pet. 340;
Wilcox
v. Jackson, 13 Pet. 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.
16 U. S. 3 Wheat.
591;
28 U. S. 3 Pet.
431;
25 U. S. 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 Pet. 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 Pet. 431. Irregularities also in notices,
mandates, and similar proceedings can still in some cases be
amended.
Ex Parte
Crenshaw, 15 Pet. 123.
Page 47 U. S. 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.
43 U. S. 2 How.
243; 3 Johns. 95; Poph. 102;
Pease v. Morgan, 7 Johns.
468;
Cheetham v. Tillotson, 4 Johns. 499; 1 Johns.Cas. 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 Pet. 119;
39 U. S. 14 Pet.
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.
37 U. S. 12
Pet. 492;
Jenkins v. Eldridge, 1 Woodb. & Minot 65,
and cases cited;
Anthony v. Love, 3 Ohio, 306;
Bennett
v. Winter, 2 Johns.Ch. 205; 3 Marsh. 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,
43 U. S. 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
Page 47 U. S. 40
Cranch 267;
McCormick v.
Sullivant, 10 Wheat. 192;
Voorhees
v. Bank of United States, 10 Pet. 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;
10 U. S. 6 Cranch
267;
14 U. S. 1
Wheat. 354;
Santa
Maria, 10 Wheat. 442;
Davis
v. Packard, 8 Pet. 323;
34 U. S. 9 Pet.
290;
37 U. S. 12
Pet. 491,
37 U. S. 343;
40 U. S. 15 Pet.
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.
Order
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.
