process of the court upon the first decree will serve, and it is therefore necessary to have another decree of the court to ascertain and enforce them; 1 or where a person who was not a party nor claims under a party to the original decree, claims, in a similar interest, or is unable to obtain the determination of his own right until the decree has been carried into execution;2 or by or against a person claiming as assignee of a party to the original decree, or otherwise, in privity with such a party, for example, a stockholder or perhaps creditor of a corporation; or to carry into execution the judgment of an inferior court of equity." A bill of this description is generally partly an original bill, though not strictly original; and sometimes it is likewise a bill of revivor or a supplemental bill, or both; and the frame of the bill, and the course of proceedings upon it, vary accordingly. Such a bill is treated as ancillary to the principal suit, and the Federal court in which the original decree was entered will take jurisdiction of the same irrespective of the citizenship of the parties. Upon a bill to carry a decree into execution the court is at liberty to examine into the grounds of the original decree, and if such decree appears to have been erroneous, to refuse to enforce it, even when the original decree was entered by consent. Where a decree is capable of being executed by the ordinary process and forms of the court, whatever the iniquity of the decree may be, till it is reversed the court is bound to assist it with the utmost

§ 349a.

Mitford's Pl., ch. i, § 3; Daniell's Ch. Pr. (1st Am. ed.) 1689; Johnson v. Northley, Prec. in Ch. 134; S. C., 2 Vern. 407.

2 Mitford's Pl., ch. i, § 3; Daniell's Ch. Pr. (1st Am. ed.) 1689, 1690; Rylands v. Latouche, 2 Bligh, 566; Oldham v. Eboral, Cooper Sel. Cases, temp. Brougham, 27.

3 Lawrence Mfg. Co. v. Janesville C. Mills, 138 U. S. 552; Organ v. Gardiner, 1 Ch. Cas. 231; Lord Carteret v. Paschal, 3 Peere Wms. 197; Binks v. Binks, 2 Bligh, P. C. 593; Root v. Woolworth, 150 U. S. 401; Daniell's Ch. Pr. (1st Am. ed.) 1691.

ford's Pl., ch. i, § 3; Daniell's Ch. Pr. (1st Am. ed.) 1691.

6 Mitford's Pl., ch. i, § 3; Daniell's Ch. Pr. (1st Am. ed.) 1693.

7 Railroad Co. v. Chamberlain, 6 Wall. 748; Root v. Woolworth, 150 U. S. 401; Central Tr. Co. v. Western R. Co., 89 Fed. R. 24.

8 Lawrence Mfg. Co. v. Janesville C. Mills, 138 U. S. 552, 562; Gay v. Parprat, 106 U. S. 679; Lawrence v. Berney, 2 Rep. in Ch. 127; Johnson v. Northey, Prec. in Ch. 134; s. C., 2 Vern. 407; Atty. Gen. v. Day, 1 Vesey, 218; Wert v. Skip, 1 Vesey, 218; Hamilton v. Houghton, 2 Bligh, P. C.

4 Central Tr. Co. v. Western N. C. 169; Mitford's Pl., ch. i, § 3; Daniell's R. Co., 89 Fed. R. 24. Ch. Pr. (1st Am. ed.) 1691, 1692.

process the course of the court will bear; but where the common process of the court will not serve and things come to be in such a state and condition after a decree made, that it requires a new bill and a second decree upon that before the first decree can be executed, if the first decree is unjust, the court desires to be excused in making it its own, and to build upon such foundations, and charging its conscience with promoting an apparent injustice; and this obliges the court to examine the grounds of the first decree before it makes the same decree again.' Equitable assets held by the defendant to a decree in which no strangers to the suit claim any interest can be subjected to the payment of sums awarded by the decree through a petition in the original cause.10 An original bill for that purpose is irregular; but it may be sustained as such a petition; when no subpoena need be served, an ordinary notice being sufficient."

9 Lawrence v. Berney, 2 Ch. R. 127; Lawrence Mfg. Co. v. Janesville C. Mills, 138 U. S. 552, 562; Mitford's Pl., ch. i, § 3; Daniell's Ch. Pr. (1st Am. ed.) 1691, 1692.

10 Maitland v. Gibson, 79 Fed. R. 136.

11 Ibid.

CHAPTER XXVII.

CORRECTION OF DECREES OTHERWISE THAN BY APPEAL

§ 350. Correction of decrees in general.- When a party to a suit in equity, or his representative, feels himself aggrieved by a final decree of the court, there are eight ways in which he can apply to have such decree reversed, set aside, or varied: by petition for a mere clerical or accidental error,1 by a petition for a rehearing,2 by a bill of review,3 by a bill in the nature of a bill of review, by a supplemental bill in the nature of a bill of review,5 by a bill to set aside a decree on account of fraud, mistake, accident, or surprise, by a bill to suspend or avoid the operation of a decree,' and by an appeal. An interlocutory decree can be corrected at the entry of the final decree. A rule of the State court permitting decrees or a default to be opened at the term after they have become absolute will not be followed by the Federal courts.10

§ 351. Amendment of decrees without a rehearing. The rules provide that "clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrolment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing." Decretal orders may be corrected in the same manner.2 In this way, corrections have been permitted of errors in the title of a decree or order; of an omission in a decree for specific performance of

3

§ 350. 1 § 351.

2 § 352.

3 §§ 354-356.

4 § 357.

5 § 353.

6 § 358.

78 359.

8 Ch. XXX.

9 Henry v. Travelers' Ins. Co., 34 Fed. R. 258; Clark v. Blair, 14 Fed. R. 812; Coburn v. Schroeder, 8 Fed. R. 521; Iowa v. Illinois, 151 U. S. 238;

supra, $318. See, however, Gunn v. Black, 60 Fed. R. 151. See Comly v. Buchanan, 81 Fed. R. 58. For motions at the foot of a decree, see supra, § 325a.

10 Austin v. Riley, 55 Fed. R. 833. § 351. Rule 85. See Witters v. Sowles, 32 Fed. R. 130; Hop B. Mfg. Co. v. Warner, 28 Fed. R. 577.

2 Union S. Ref. v. Mathiesson, 3 Cliff. 146.

3 Spearing v. Lynn, 2 Vern. 376.

6

7

a direction to settle the conveyance, or of a reference as to title; of an omission in a decree in a creditor's suit of a direction to take the accounts of the personal estate; of an allowance of interest from a different date from that determined in a master's report which the court had confirmed; and of other minor defects or redundancies in respect to which a decree did not conform to the directions of the written opinion of the court. It has been held that such a correction cannot be made in an appealable case after the term at which the decree was entered. An order or decree entered by consent cannot be varied or modified in a material part without the assent of all the parties to the same; but the court, it seems, may give such further directions as are necessary to carry it "into effect, according to its spirit and intent." 10 The former English practice occasionally though rarely allowed similar corrections in what were manifestly mere clerical errors after a decree had been enrolled;" and in the Federal courts it has been said that an error in calculating the amount ordered by the decree to be paid may be corrected after enrolment, upon motion or petition, by entering a credit as for its payment."2 Judgments have been set aside after the terms at which they were rendered where appearances had been made by attorneys without authority.13 It has been held that the Federal courts can set aside, after the term at which it was rendered, a final judgment

4 Trevelyan v. Charter, 9 Beav. 140..643; Hicklin v. Marco, 64 Fed. R. 5 Hughes v. Jones, 26 Beav. 24. 609.

6 Pickard v. Mattheson, 7 Ves. 293. 7 Fidelity Trust & Safe Deposit Co. v. Roanoke Iron Co., 84 Fed. R. 744. 8 Gage v. Kellogg, 26 Fed. R. 242; Rogers v. Riessner, 34 Fed. R. 270; Tufts v. Tufts, 3 W. & M. 429; Pfanschmidt v. Kelly M. Co., 32 Fed. R. 667; Witters v. Sowles, 32 Fed. R. 765; Burdsall v. Curran, 31 Fed. R. 918; Albany v. Steam T. Co., 26 Fed. R. 318; Dorsheimer v. Rorback, 9 C. E. Green (N. J.), 33; Sprague v. Jones, 9 Paige (N. Y.), 395; Jarmon v. Wiswall, 9 C. E. Green (N. J.), 68. But see Ry. Reg. Mfg. Co. v. North Hudson Co. R. Co., 26 Fed. R. 411.

10 Walworth, C., in Leitch v. Cumpston, 4 Paige (N. Y.), 476; Gage v. Kellogg, 26 Fed. R. 242; Rogers v. Riessner, 34 Fed. R. 270.

11 Weston v. Haggerston, G. Cooper, 134; Yow v. Townsend, 1 Dick. 59; Atty. Gen. v. Greenhill, 34 Beav. 174; Beekman v. Peck, 3 J. Ch. (N. Y.) 415; Clark v. Hall, 7 Paige (N. Y.), 382; Thompson v. Goulding,5 Allen (Mass.), 81. For enrollment of decrees, see supra, § 325b.

12 Massie v. Graham, 3 McLean, 41. 13 After three years, in McGeorge v. Bigstone G. I. Co., 88 Fed. R. 599. After eleven years, Maury's Trustees

9 Doe v. Waterloo Min. Co., 60 Fed. v. Fitzwater, 88 Fed. R. 768.

17

14

or decree entered by a mistake of the judge without an examination of the pleadings and evidence; one which the judge was induced to make by false representations as to its nature; 15 when the necessity for the correction and the matter from which it is to be made appear upon the face of the record; 16 when, according to the judge's recollection, it does not conform to his decision; "7 in which last two cases no notice of the application for the correction is required; 18 and whenever it can be shown, by evidence adduced aliunde, that the judgment does not represent the decision of the court.19 But it has been held that the Circuit Courts, after the term at which they were rendered and the time allowed by the rules for an application for a rehearing has expired, have not the power to set aside decrees or judgments for errors of law.20 A decree entered upon a mandate of the Supreme Court which fails in any respect to comply therewith is, not final, and may be modified at a subsequent term. It has been held that, after the term at which a decree has been entered, it may be modified as to the time or the manner of its enforcement." A Federal court may vacate or correct its judgments or decrees on its own motion during the same term for any cause."

21

§ 352. Petitions for a rehearing.- A petition for a rehearing is the proper method of correcting before enrolment errors in a decree which are not evidently clerical or accidental. A petition for a rehearing could formerly in England have only been made to a judge before whom the cause was heard, or to the Lord Chancellor. In the Federal courts a petition for a rehearing will usually be entertained only by the judge or jus

14 U. S. v. Williams, 67 Fed. R. 384. Such an application should be addressed to the judge who made the error. If he is dead or has left the bench, another judge will rarely, if ever, grant it. Hicklin v. Marco, 64 Fed. R. 609.

15 Fisher v. Simon, 67 Fed. R. 387. 16 Odell v. Reynolds (C. C. A.), 70 Fed. R. 656.

17 Ibid.

18 Ibid.

19 In such a case the application must be upon notice. Ibid.

20 Klever v. Seawall (C. C. A.), 65 Fed. R. 373; McGregor v. Vt. L. & Tr. Co. (C. C. A.), 104 Fed. R. 709.

21 Moran v. Hagerman (C. C. A.), 64 Fed. R. 499.

22 Mootry v. Grayson (C. C. A.), 104 Fed. R. 613, 618; Farmers' L & Tr. Co. v. Oregon Pac. R. Co., 28 Oreg. 44; s. c., 40 Pac. R. 1089; Monkhouse v. Corporation of Bedford, 17 Ves. 380.

23 Etna L. Ins. Co. v. Board of Co. Com'rs (C. C. A.), 79 Fed. R. 575. § 352. Daniell's Ch. Pr. (5th Am. ed.) 1471.

1