UNITED STATES v. VANDEGRIFT.

(Circuit Court of Appeals, First Circuit. December 7, 1905.)

No. 611 (suit 1,571).

1. CUSTOMS DUTIES-CLASSIFICATION-SHEARED SHAPES-STEEL PLATES. As to steel plates changed from the usual form by being cut at a slight variation from a right angle, for a special purpose and not for evasion, held that they are provided for in Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 135, 30 Stat. 161 [U. S. Comp. St. 1901, p. 1638], enumerating "sheared shapes" of steel and "plates and steel in all forms and shapes not specially provided for," rather than in paragraph 126, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1637], enumerating "boiler, or other plate iron or steel sheared or unsheared."

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Appeal from the Circuit Court of the United States for the District of Massachusetts.

For decision below, see 139 Fed. 790, in which the Circuit Court. reversed a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Boston.

Melvin O. Adams, U. S. Atty., and William H. Garland, Asst. U. S. Atty.

Charles P. Searle (C. E. Pillsbury, on the brief), for the importers. Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM, Circuit Judge. This appeal turns on a question of classification under the customs act of 1897. The importation is described by the United States as "quadrilateral plates of steel, one fourth of an inch thick, and 154 inches by 156 inches by 621⁄2 inches by 634 inches in the other dimensions." It will be noticed that this is a trapezium, with each of its lines different from every other line. It occurs at once that this is not the ordinary form in which steel plates are put on the market, and, therefore, that it is not the ordinary form of importations of steel plates. That the peculiar shape of the plates in question was not for evasion is evident, because the waste necessarily involved in reducing them to the ordinary merchantable form would be disproportionate, and also from the nature of the special purpose for which they were in this instance imported. In fact, as said by the learned judge who disposed of the case in the Circuit Court (139 Fed. 790, 791), the importation was "sheets of steel, admittedly cut to a specific shape according to a sketch, and for a special purpose." Under these circumstances, the question is between paragraph 126 of the act of 1897 and paragraph 135 of the same act. Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 159, 161 [U. S. Comp. Št. 1901, pp. 1637, 1638]. It is not necessary that we should quote those paragraphs at length, or do more than state the fact that paragraph 126 specifies "boiler or other plate iron or steel," "sheared or unsheared," while paragraph 135 specifies "pressed, sheared or stamped shapes," and "sheets and plates and steel in all forms and shapes not specially provided for in this act." The Circuit Court held that the

importation should be classified under paragraph 135, as claimed by the importer. We hold that the conclusion of the Circuit Court was correct, and that its opinion states the proper reasons therefor; so that we have no occasion to add to it.

The decree of the Circuit Court is affirmed.

O'CONNOR v. O'CONNOR et al.

(Circuit Court of Appeals, Fifth Circuit. December 19, 1905.)

No. 1,498.

JUDGMENTS-PROCEEDINGS TO VACATE-POWERS OF FEDERAL COURTS.

A federal court has no power, on motion or petition in an action at law, to vacate a judgment rendered at a previous term; the appropriate remedy, in case the judgment was wrongfully or fraudulently obtained, being by a bill in equity.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 668.]

In Error to the Circuit Court of the United States for the Western District of Texas.

J. D. Guinn (W. B. Stephens, on the brief), for plaintiff in error. Wm. Aubrey, Venable B. Proctor, and J. V. Vandenberge (Proctor, Vandenberge & Crain and Davidson & Bailey, on the brief), for defendants in error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

SHELBY, Circuit Judge. This was a motion made in the court below on December 29, 1904, to vacate and set aside a judgment dismissing a cause and striking it from the docket, which judgment was rendered and entered on May 16, 1890, more than 14 years and 7 months before the motion was entered. The defendants demurred to the motion, and assign as one of the grounds of demurrer that the court below had no jurisdiction to determine the motion, because it appeared from the motion that the "plaintiff's remedy, if any he have, is upon the equity side of the docket." The court sustained the demurrer, and the plaintiff sued out this writ f error.

In a state court where a system has been adopted which amalgamates the equitable and law jurisdiction in one form of action it is easy to see how relief might be granted on motion in a case like this. It would be a matter of no consequence whether the case be considered one at law or in equity; the form of the action, and the court which had jurisdiction, would be the same. It would be useless to examine the state decisions on this subject, for neither the practice of the state courts in exercising control over their 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. It is a question of power, and not of procedure. Jurisdiction at law and in equity are as separate in the federal courts as if administered by different tribunals.

142 F.-29

It is a rule, well established, that all judgments, decrees, and other orders of the courts are under the control of the court which pronounces them during the term at which they are rendered and entered of record, and that the court may set them aside, annul them, or modify them at any time during the term; and it is equally well settled that, after the term is ended, all final judgments and decrees of the court pass beyond its control, unless steps have been taken during the term, by motion or otherwise, to vacate, modify, or correct them. If errors exist, they can only be corrected by writ of error or appeal, or such other appellate proceeding as may be allowed by law. This rule has been established by a long line of decisions of the Supreme Court. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797, and cases there cited.

The facts alleged in the motion show that the movant has been greatly wronged and injured. It is alleged that he held the note of Thomas O'Connor for $30,000, made April 30, 1871; and that he brought suit on this note in the court below on November 7, 1884; that he held a letter of the maker of the note, promising to pay it, thereby removing the bar of the statute of limitations. It is alleged that while this case was at issue the defendants in the suit unlawfully and wrongfully procured the arrest of the plaintiff, and by false testimony caused his conviction and sentence to a life term in the penitentiary of the state; that the suit to collect the $30,000 was dismissed against the wishes of the plaintiff, while he was so confined in the penitentiary; that the plaintiff remained continually confined in the penitentiary until he was pardoned on December 20, 1904, and restored to full citizenship. He entered the motion to vacate the judgment within nine days after his release. The foregoing is a very brief statement of the wrongs and injuries alleged in the motion. It would serve no useful purpose, and would perhaps be inappropriate, to analyze the motion with the view of deciding whether or not it contains all of the averments that would be necessary, if put in proper form, to constitute a good bill in equity for relief against the judgment. We are constrained to decide that in federal jurisprudence the appropriate remedy to set aside or enjoin the execution of judgments at law wrongfully or fraudulently obtained is by bill in equity. Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901, 29 L. Ed. 1013. See, also, Tice v. School District (C. C.) 17 Fed. 283, and authorities there cited. There is another question raised by the demurrer relating to the dividing of the state of Texas into four judicial districts, and to the effect of the act of Congress so dividing the state upon suits brought in the courts of the district before the state was so divided. The view we take of the case, that no federal court in a proceeding at law, by motion or petition to vacate a judgment rendered at a previous term, has power to grant the relief sought, makes it unnecessary for us to consider other questions.

The judgment entered in the court below is one sustaining the demurrer, and adding "that the said motion shall be dismissed, and the same is hereby dismissed, at plaintiff's cost." It is proper that the judgment should be amended so as to dismiss the motion made by the

plaintiff in the court below "without prejudice to his right to file a bill in equity." Phillips v. Negley, 117 U. S. 665, 679, 6 Sup. Ct. 901, 907, 29 L. Ed. 1013.

And, as so amended, the judgment is affirmed.

LATIMER et al. v. McNEAL.

(Circuit Court of Appeals, Third Circuit. January 15, 1906.)

No. 20.

1. CONSTITUTIONAL-LAW-DUE PROCESS-APPOINTMENT OF RECEIVER.

The appointment of a receiver for the property of an alleged bankrupt under Bankr. Act July 1, 1898, c. 541, § 2 (3) 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420], either with or without notice, is not in violation of the Constitution, as depriving the defendant of his property without due process of law.

2. BANKRUPTCY-ORDER REFUSING TO DISCHARGE RECEIVER-REVIEW.

An order of a court of bankruptcy refusing to discharge a receiver considered, and held not erroneous as matter of law.

Petition for Revision of Proceedings of the District Court of the United States for the Eastern District of Pennsylvania, in Bankruptcy. For opinion below, see 136 Fed. 912.

Henry J. Scott, for petitioner.

George Wharton Pepper, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. This case comes before the court upon petition of Stanley Francis, an alleged bankrupt, to review the action of the District Court of the United States for the Eastern District of Pennsylvania in a proceeding in bankruptcy. The record discloses that on March 31, 1905, an involuntary petition in bankruptcy was filed in the District Court, against Wm. H. Latimer, Frank C. Marrin, and Stanley Francis, individually and trading as the Provident Investment Bureau. On the same day a petition was presented for the appointment of a receiver, in which it was alleged that said named persons had been engaged in procuring money through the mails by fraudulent representations in furtherance of a fraudulent scheme. The petition further stated that Latimer and Marrin were fugitives from justice and their whereabouts unknown to the petitioner, and that Stanley Francis was then in custody, charged with the violation of the laws of the United States relating to the fraudulent use of the mails for the purpose of procuring money. The petition contained other averments showing that a receiver was necessary to take charge of the property of the alleged bankrupts for the preservation thereof and for the protection of their creditors, until further orders of the court in the premises. On the same day and without first giving notice to any of the alleged bankrupts, J. Hector McNeal was appointed, in accordance with the prayer of the petition, receiver to take charge of the property of the alleged bankrupts and of each of them, and to hold the same until the further order of the court.

On April 4, 1905, a petition was presented to the District Court by Stanley Francis, praying the court to revoke the appointment of the receiver, and thereupon a rule was granted upon the receiver to show cause why the appointment of the receiver should not be revoked, and an order was made staying all proceedings under the receivership until the disposition of said rule. To the petition of Francis, the petitioning creditor filed an answer. The rule to show cause why the appointment of the receiver should not be revoked having been duly heard by the court, the prayer of the petition of Stanley Francis to revoke the appointment of the receiver was refused. Thereafter Francis presented his petition for review to this court. This petition, after reciting the proceedings in the District Court, proceeds thus:

"That on the 28th day of April, 1905, the Honorable James B. Holland refused the prayer of the petition to revoke appointment of receiver. That the said decision was erroneous in matter of law, in that your petitioner has been deprived of his property without due process of law, in violation of the fifth article of the Constitution of the United States. Wherefore your petitioner feels aggrieved because of such ruling, and asks that same may be revised in matter of law by your honorable court, as provided in section 24b of bankruptcy laws of 1898, and rules and practice in such case provided."

The bankrupt act of 1898 provides, in section 2, subd. 3, that the court sitting in bankruptcy may "appoint receivers or the marshals, upon application of parties in interest, in case the court shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified." Bankr. Act July 1, 1898, c. 541, 30 Stat. 545 [U. S. Comp. St. 1901, p. 3420]. Now, as respects the matter of notice, it will be observed that the bankrupt act does not expressly require notice to be given the bankrupt before the appointment of a receiver, under the provision quoted. Such appointment, moreover, does not deprive the bankrupt of his property without due process of law, for the appointment is essentially for the temporary custody of his property with a view to its preservation. Furthermore, there occur well-recognized instances of such urgency as to dispense with notice; as where irreparable loss or injury is impending, or where notice might defeat the very purpose of the receivership. We are, indeed, clearly of opinion that except in rare cases a receiver ought never to be appointed without notice to the alleged bankrupt.

Turning now to the case before us, it is to be noted that immediately after the appointment of the receiver, Francis, the alleged bankrupt, applied to the court to revoke the appointment, the court entertained his petition, a rule was granted to show cause why the appointment should not be revoked, and pending the rule the court stayed all proceedings. After answer to the rule, the court heard the case and refused to revoke the appointment of the receiver. This refusal is what the present petition brings before us for revision, and we are asked to declare that this decision of the court below, after hearing, refusing to revoke the appointment of its receiver, was in matter of law erroneous. This we are not prepared to do. We have carefully considered the argument of the petitioner, but we see no reason to re