Gambar halaman
[ocr errors]

by law to have a permanent office and a judgment record open at all times for public inspection in such county or parish.”ll The

11 25 St. at L 357, as amended by State provide for docketing the judg28 St. at L 813.

ments of its own courts in any county " The first clause of the act places in the State, but do not make a like judgment liens in a Federal court on provision as to the judgments of the the same footing in all respects as a Federal court, the act of Congress is judgment lien in a State court of not operative; and in such States general jurisdiction. But the power the lien of a judgment of a Federal of Congress was not adequate to the court continues to be co-extensive task of extending the territorial op- with its territorial jurisdiction. The eration of a judgment lien in the law of this state conforms exactly to mode provided by State laws for a the requirements of the act of Conjudgment in the State court. Con- gress, and makes it operative in this gress was confronted with the diffi- State. The statute reads as follows: culty pointed out by Mr. Justice Mc- "Judgments of courts of record of Lean." (Den v. Jones, 2 McLean, 83, this State, and of courts of the United 85).

States rendered within this State, “The law of a State might pro- shall be liens on the real estate of vide for filing and docketing a tran- the debtor within the county in script of judgment of a State which the judgment is rendered, court in the clerk's office of any from the first day of the term at county in the State, and in this way which the judgment is rendered; extend the lien of a judgment be- but judgments by confession, and yond the county in which it was judgments rendered at the same rendered. But there was no Federal term during which the action was clerk's office or other like office, in commenced, shall bind such lands each county in the State, in which a only from the day on which such judgment rendered in a Federal judgment was rendered. An attested court could be docketed; and Con- copy of the journal entry of any gress could not make it obligatory judgment, together with a statement on the State clerks to docket and en- of the costs taxed against the debtor ter a judgment of a Federal court on in the case, may be filed in the office their records. But it was entirely of the clerk of the District Court of competent for the State to require any county, and such judgment shall her clerks to perform this service, be a lien on the real estate of the and the proviso in section 1 of the debtor within that county from the act declares, in legal effect, that date of filing such copy. The clerk when the laws of a State provide for shall enter such judgment on the docketing in her clerks' offices, or appearance and judgment dockets other offices, the judgments of Fed- in the same manner as if rendered eral courts, in the same manner that in the court of which he is clerk. judgments in her own courts may Executions shall only be issued from be docketed, then, and not before, the court in which the judgment is the territorial extent (in other re- rendered.' Gen. St. Kan. 1868, ch. 80, spects they were already the same) $ 419. of the lien of a judgment in a Fed- Under this statute it is plainly eral court in that State shall be the the duty of any clerk of the District same as that of a judgment in the Court of the State, when the journal State court. Where the laws of a entry of a judgment rendered in a

clerk cannot charge a fee for allowing an individual or a corporation to inspect these indices or records.12

A judgment in favor of one or more joint contractors has been held no bar to a suit against another, who was neither served with process nor appeared in the action in which the judgment was rendered.13

§ 379. Correction of judgments by courts that rendered them.- In the correction, amendment, and vacation of their own judgments, the Federal courts act independently of the law regulating the State courts. “The question relates to the power of the courts and not to the mode of procedure.”? At the term at which it is entered, a judgment may, for cause shown, be set aside, modified or amended, by the court where it was entered. After the term has expired, unless a motion for the relief was made or noticed during that term," no alteration or correction can be made except by writ of error, and in that class of cases in which the writ of error coram nobis was issued in the old English practice. “The writ of error coram

Federal court held in this State is held and the judgment rendered; filed in his office, 'to enter such but the lien may be extended to any judgment on the appearance and other county, in the mode provided judgment dockets in the same man- by section 419 of the General Statutes ner as if rendered in the court of of the State above quoted.” Dartwhich he is clerk.' The words any mouth Sav. Bank v. Bates et al., 44 judgment,' in the second sentence of Fed. R. 546, per Caldwell, J. See the section, obviously, and accord- also Cooke v. Avery, 147 U. S. 375. ing to every rule for the construc- 12 In re Chambers, 44 Fed. R. 786. tion of statutes, include the judg- 13 Larison v. Hager, 44 Fed. R. 49. ments specifically mentioned in the $ 379. Bronson v. Schulten, 104 first sentence of the section. It may U. S. 410, 417. or may not include others, but it un- 2 Bronson v. Schulten, 104 U. S. 410, doubtedly includes them. Section 3 417, per Miller, J.; Ex parte Casey, 18 of the act of Congress expressly pro- Fed. R. 86. vides that the act shall not be con- 3 Bronson v. Schulten, 104 U. S. 410, strued to require the filing of a tran- 415. script of a judgment of a United 4 Amy v. Watertown, 130 U. S. 301, States court in the county clerk's 313: Bronson v. Schulten, 104 U. S. office of the county in which the 410, 415, 416; Klever v. Seawall, 65 judgment was rendered, in order Fed. R. 373. that such judgment may be a lien 5 Bronson v. Schulten, 104 U. S. 410, on any property within such county. 415, 416; Phillips v. Negley, 117 U. S. The result is that a judgment in a 665; Hickman v. Fort Scott, 141 U. S. United States court in this State is a 415; Hook v. Mercantile Tr. Co., 89 lien on the lands of the debtor only Fed. R. 410. But in the District of in the county in which the court was Delaware a judgment by default

nobis 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, or the like; or error in the process through default of the clerk.” “In practice the same end is now generally attained by motion, sustained, if the case require it, by affidavits; and it is observable that so far has the latter mode superseded the former in the British practice, that Blackstone does not even notice this suit among his remedies.”? An order may be entered nunc pro tunc to embody a decision made at a previous term of the court even in a criminal case; 8 and in a civil case to make special findings previously omitted, comformably to the opinion filed at the judgment term;' but not after a writ of error has been decided to insert in a record certain findings, some of which findings were unavoidably and others accidentally omitted.10 And an order nunc pro tunc has no effect upon the statute of limitations; 11 nor can it relate back so as to make a person guilty of contempt for an act done before it was entered.12 It has been held that a court has power at any time to set aside a judgment which is absolutely void, not merely voidable.13

was set aside upon motion at a sub- 7 Pickett's Heirs v. Legerwood, 7 sequent term, where the defendant's Pet. 144, 148, per Johnson, J. attorney had believed that the suit 8 In re Wight, 134 U. S. 136; Superwas brought in the State court. visors v. Durant, 9 Wall. 736; Ætna Brown v. Phila., W. & B. R. Co., 9 Ins. Co. v. Boon, 95 U. S. 117. See Fed. R. 183. It has been held that Hickman v. Fort Scott, 141 U. S. 415. an order staying plaintiff's proceed- 9 Ætna Ins. Co. v. Boon, 95 U. S. ings till he pays costs of a former 117. suit is res adjudicata upon a subse 10 Hickman v. Fort Scott, 141 U. S. quent motion, and is so far final that 415. it cannot be set aside or modified at 11 Fewlass v. Keesham (C. C. A.), 88 a subsequent term. Buckles v. Chí Fed. R. 573, 576. cago, M. & St. Paul Ry. Co., 53 Fed. 12 Ex parte Buskirk (C. C. A.), 72 R 566.

Fed. R. 14. 6 Bronson v. Schulten, 104 U. S. 410, 13 U. S. v. Wallace, 46 Fed. R. 569, 416, per Miller, J.; Phillips v. Negley, 570. For example, a judgment en117 U. S. 665. See Lincoln Nat. Bank tered in vacation without statutory v. Perry, 66 Fed. R. 887.

authority. Abraham v. Levy (C. C. d.), 72 Fed. R. 124. Cf. supra, 8 351.

§ 380. Executions and proceedings supplementary thereto. A statute passed June 1, 1872, and incorporated in the Revised Statutes December 1, 1873, provides that “the party recovering a judgment in any common-law cause in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such hereafter enacted which may be adopted by general rules of such Circuit or District Court; and such courts may from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise."! In pursuance of this statute, the Circuit and District Courts have generally promulgated rules adopting the State practice in this respect.? The adoption of such a rule gives the Federal court power to enforce the proceedings supplementary to execution authorized by the State statutes. It has been held that a State statute requiring the registration of a judgment against a municipal corporation in a certain office before its enforcement by execution may apply to the judgment of a Federal court;4 but that a State statute forbidding the enforcement by execution of a judgment against a municipal corporation does not affect the judgment of a Federal court.5

The Revised Statutes provide that "all writs of execution upon judgments or decrees obtained in a Circuit or District Court, in any State which is divided into two or more districts, may run and be executed in any part of such State; but shall be issued from, and made returnable to, the court wherein the

$ 380. 1U. S. R. S., § 916; 4 St. at mulgated by the U. S. C. C., S. D. L., ch. 68, p. 281; Lamaster v. Keeler, N. Y., October 11, 1878, and Decem. 123 U. S. 376. The Pennsylvania stat- ber 29, 1881. ute authorizes the sale of a patent 3 Ex parte Boyd, 105 U. S. 647; right under a special fieri facias. Canal & C. St. R. Co. v. Hart, 114 U. S. Pennsylvania Act of 1870 (P. L. 58); 654, 661. See $ 21. Erie Wringer Mfg. Co. v. National 4 Hart v. New Orleans, 12 Fed. R. Wringer Co., 63 Fed. R. 248; Phila- 292, 293. See Louisiana v. New Ordelphia & B. C. R. Co.'s Appeal, 70 leans, 102 U. S. 203. Pa. St. 355; Floyd v. Farnsworth, 12 5 Hart v. New Orleans, 12 Fed. R. Wkly. Notes, 500. Cf. Ager v. Mur- 292; New Orleans v. Morris, 3 Woods, ray, 105 U. S. 126; supra, § 11. 115. See Merriwether v. Garrett, 102

2 See for examples the rules pro- U. S. 470.

judgment was obtained." 8 In cases where a writ of error lies to the Supreme Court, or to a Circuit Court of Appeals, the execution cannot be issued till ten days after the entry of the judgment. The writ may, however, be previously prepared by the clerk. It has been held that when a motion for a new trial is pending after the entry of judgment, the ten days does not begin to run till such motion is denied, and that the denial does not become effective till the order has been filed in the clerk's office;' and that Sundays must be excluded from the computation of the time.10 A temporary stay of execution may be granted, although no writ of error is sued out, so that other lienholders may enter judgments against the judgment debtor, and thus share in the proceeds of the sale. The court may compel the judgment debtor to give security as a condition of a stay of proceedings of more than ten days after entry of judgment. When it is required by the laws of any State that goods taken in execution on a writ of fieri facias shall be appraised before they are sold, the appraisers appointed under the authority of the State may appraise goods taken in execution on such a writ issued out of a court of the United States, in the same manner as if such writ had issued out of a court of such State; and the marshal, in whose custody the goods are, shall summon the appraisers in the same manner as the sheriff is, by the laws of such State, required to summon them, and if the appraisers, after having been duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement. When such appraisers attend, they are entitled to the like fees as in cases of appraisement under the laws of such State.14 When a marshal dies, or is removed from office, or his term expires, after he has taken under execution any real property and before sale or other final disposition thereof, the like process issues to the succeeding marshal, and the same proceeding is had as if

6 U. S. R. S., § 985.

10 Danielson v. Northwestern Fuel TU. S. R. S., & 1007; Danielson v. Co., 55 Fed. R. 49. Northwestern Fuel Co., 55 Fed. R. 49. 11 Eaton v. Cleveland, St. L. & K. C.

8 Board of Com’rs v. Gorman, 19 Ry. Co., 41 Fed. R. 421. Wall. 661.

12 Fisher v. Meyer, 10 Fed. R. 268. 9 Brown v. Evans, 18 Fed. R. 56; 13 U. S. R. S., S 993; Wayman v. Danielson v. Northwestern Fuel Co., Southard, 10 Wheat. 1. 55 Fed. R. 49.

14 U. S. R. S., S 993.

« SebelumnyaLanjutkan »