for the reasons stated below. A writ of error was sued out by the defendant. The plaintiff himself swears that he personally inquired at the clerk's office on October 28, 1907, and again on October 29, 1907, this time in the company of his wife. He examined an answer then on file, and found that it contained an admission that "plaintiff procured the contract" for the defendant, for procuring which the complaint asked for a commission. He also found that the verification to the answer was undated, that under the name of the notary public appeared only the word "Notary," and that it bore no notary's seal. Plaintiff and his wife thereupon visited their attorney on the same day and saw in his possession a copy of the answer, which conformed to the answer which they had seen in the clerk's office. The plaintiff told his attorney then to enter a judgment in his favor on the ground that the answer was a nullity. On November 6, 1907, the plaintiff and his wife went again to their attorney's office, who told them that the answer was still the same, and still refused to enter the judgment by default. On November 11, 1907, the plaintiff called at the clerk's office, found the note of issue of November 8th, and an answer which he insists was different from the earlier one. In place of the words "procured the contract" occurred the words, "contributed to the procurement of such contract," the answer now had a notary's seal upon it, after the word "Notary" appeared the word "Public," and the verification had been dated September 20, 1907. On November 18th, on still another visit to the clerk's office, the clerk told the plaintiff that the case would probably not be reached for two or three years. Barry, Wainwright, Thacher & Symmers, of New York City (Herbert Barry, of New York City, of counsel), for plaintiff in error. McLear & McLear, of New York City, for defendant in error. Before COXE and WARD, Circuit Judges, and LEARNED HAND, District Judge. LEARNED HAND, District Judge (after stating the facts as above). [1] An order of the character now under review, which is equivalent to one setting aside a judgment and granting a new trial, being in the discretion of the court below, is not within the jurisdiction of this court to review. If, however, the action of the court is beyond its jurisdiction, that question and that alone may be reviewed by writ of error. City of Manning v. German Ins. Co., 107 Fed. 52, 46 C. C. A. 144; Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901, 29 L. Ed. 1013. [2] The order dismissing the complaint for failure to prosecute was a final disposition of the cause, and was therefore not within the power of the court to vacate after the term at which it was granted (U. S. v. Mayer, 235 U. S. 55, 35 Sup. Ct. 16, 59 L. Ed. 129), unless there are some circumstances in the case which take it out of the ordinary rule. The court may correct its judgment after the term, if there be a clerical error, or in case the judgment has been entered by misprision. of the clerk, or for any error which the old writ of error coram nobis would have reached. Those errors are stated by Mr. Justice Hughes in U. S. v. Mayer, supra, 235 U. S. page 68, 35 Sup. Ct. page 19, 59 L. Ed. 129. They were only errors of law disclosed by the record, or "errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself." [3] In the case at bar there was no clerical error, no misprision of the clerk, no error of law disclosed by the record. Assuming, without deciding, that the plaintiff's story was correct, the only possible irregularity in the proceedings affecting their regularity, arose from his contention that the original answer had not been verified in accordance with section 526 of the Code of Civil Procedure, in that the date of the verification was not stated, that no notarial seal was added, and that the word "Public" was left off in the phrase, "Notary Public." The law regarding errors in the verification is to be found in section 528 of the Code of Civil Procedure of New York, which is as follows: "The remedy for a defective verification of the pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy of a sufficient verification, in a case, where the adverse party is entitled to a verified pleading, he may treat it as a nullity." Now the plaintiff swears that when he came to his attorney's office on October 29, 1907, the copy of the answer which he then saw was the same as that on file. In order, then, to take advantage of those defects in the verification of the pleadings, it was necessary for the attorney to return that answer with due diligence and the Supreme Court of the state of New York has determined that due diligence in such a case requires a return within 24 hours. Sweeney v. O'Dwyer, 45 Misc. Rep. 43, 90 N. Y. Supp. 806; Paddock v. Palmer, 32 Misc. Rep. 426, 66 N. Y. Supp. 743. No one contends that the plaintiff's attorney did return the first answer in season, if he ever received it, as the plaintiff himself asserts. Hence there was no excuse for disregarding the answer. [4, 5] If, on the other hand, the answer was first served in November, and if at that time the original answer had been changed upon the files of the clerk, as might be done by amendment, the second answer was still not a nullity, and the case was at issue. It is true that if an admission in the answer had been changed, as the plaintiff claims, the earlier form of the admission might have been restored on application by the plaintiff himself; but that question would be relevant only in a trial upon the merits, and did not affect the fact that the case was at issue under the answer, and therefore subject to dismissal for lack of prosecution. The error of fact, and it was really not such at all, therefore, would not have been one "material to the validity and regularity of the legal proceeding itself," and would not have been searched by a writ of error coram nobis. [6] The defendant is not shown to have been privy to the disloyalty of the plaintiff's attorney, if such disloyalty existed, for the District Court has not found that it committed any fraud in procuring the judgment of dismissal or in changing the answer. Even assuming that the answer had been changed by procurement of the defendant, the change did not prevent the cause from being at issue, or contribute to the dismissal of the complaint, and it would be irrelevant for the purposes of this review. The order vacating the judgment was therefore without the jurisdiction of the District Court, and it must therefore be reversed, with costs, leaving the judgment of dismissal to stand. (232 Fed. 836) In re EQUITABLE TRUST CO. OF NEW YORK. No. 2781. JUDGES 53-DISQUALIFICATION-RIGHT TO ASSERT. Where, on the motion of petitioner, the District Judge was proceeding to decide the question whether, on foreclosure, an upset price, below which the property should not be sold, should be fixed, petitioner cannot have the judge removed by an affidavit charging bias and prejudice. [Ed. Note.-For other cases, see Judges, Cent. Dig. § 232; Dec. Dig. 53.] Petition for Writ of Mandamus to the Judge of the District Court. of the United States for the Second Division of the Northern District of California. Petition by the Equitable Trust Company of New York, as trustee, for a writ of mandamus to be directed to William C. Van Fleet, Judge of the United States District Court. Writ denied. See, also, 231 Fed. 571, 145 C. C. A. 457. Murray, Prentice & Howland, of New York City, and Jared How, of San Francisco, Cal., for petitioner. Garret W. McEnerney and John S. Partridge, both of San Francisco, Cal., for respondents. Byrne & Cutcheon, of New York City, and Charles S. Wheeler and John F. Bowie, both of San Francisco, Cal., amici curiæ. Before GILBERT, ROSS, and HUNT, Circuit Judges. ROSS, Circuit Judge. March 6, 1916, was the first day of the March term of the District Court for the Northern District of California, Second Division, over which Hon. William C. Van Fleet presides. Fifteen days before that, to wit, on the 21st of February, 1916, he had made an order directing that the Denver & Rio Grande Railroad Company and the Missouri Pacific Railroad Company be made parties defendant to and respectively interplead in a suit theretofore brought in said court. by the Equitable Trust Company of New York, as trustee, against the Western Pacific Railway Company, to foreclose a first mortgage given by the latter company to the trust company to secure a bond issue of $50,000,000, and also enjoining the trust company from proceeding with a certain dependent suit it had theretofore brought in the state of New York in respect to some of the property covered by the mortgage. Claiming that the order directing the making of the Denver & Rio Grande Company and Missouri Pacific Company parties to the suit and the injunctive order were beyond the power of the court to make, and were therefore void, the complainant in the suit, based upon a stipulation of all of the parties thereto purporting to authorize such course, moved the court on the 6th day of March, 1916, for the immediate entry of a decree in the cause in the terms of a form annexed to the stipulation, and, in the event of a denial of such immediate entry, that For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the cause be set for hearing and for entry of the decree at such early day as the court should assign; Mr. How, the attorney for the complainant, saying, among other things: "I move the court that this decree be entered forthwith, in the terms of the form attached to the stipulation; in the alternative, if that motion shall be denied, I move that the cause be set for hearing and for the entry of the decree at such early date as the court may assign. The affidavits which I produced before your honor are merely in support of our motion for a hearing at an early day and the entering of a decree at that time. If the court thinks it wants to consider the matter of an upset price, I should think, of course, it ought to be allowed that time, but I wanted to impress upon the court the urgency of the situation." Four days thereafter, and while the motion was pending, to wit, March 10, 1916, the Equitable Trust Company appealed to this court from the injunctive part of the order of the District Court above referred to, and also applied to this court for a writ of prohibition to prevent the District Court from compelling the Denver & Rio Grande Railroad Company and the Missouri Pacific Railroad Company to interplead in the foreclosure suit, and also for a writ of mandamus directing the District Court to grant the motion of the complainant made to that court for the entry of a decree in the foreclosure suit in accordance with the stipulation referred to. The records show that during the proceedings had before the District Court Judge Van Fleet became apprised of the applications that had been made to this court, postponed from time to time action upon the pending motion before him for the entry of a decree, and awaited the action of this court upon the applications made to it, and in the course of the discussion of the application so made to him for the immediate entry of a decree said, among other things: * * "Should the Circuit Court of Appeals, for instance, determine either that this court has no power to bring in the Denver, or that the presence of the Denver here is not essential, there will be no difficulty whatsoever. We can proceed and dispose of this matter in a very short time. If the Court of Appeals shall determine that this court is wrong in its view that contract B must be interpreted here, and may be disposed of like any other piece of physical property that is pledged under a mortgage, there will be no difficulty at all in wiping the slate very clean in a very quick and expeditious way, thus disposing of all the difficulties." During the pendency of the applications to this court, and during the pendency of the motion made by the Trust Company to Judge Van Fleet on the 6th of March, 1916, for the immediate entry of a decree, to wit, on the 13th day of March, 1916, the Savings Union Bank & Trust Company of San Francisco, as the owner of 125 of the first mortgage bonds of the Western Pacific road and as the representative of the holders of 575 additional of the first mortgage bonds, filed in the District Court a petition in intervention, praying, among other things, that before the sale of any of the properties of the Western Pacific Company be ordered evidence be taken with respect to the value of the properties of that company, and an upset price be fixed below which the commissioner making the sale be not permitted to receive a bid therefor, which upset price be high enough to properly protect the interest of the interveners and of first mortgage bondholders not parties to the plan of reorganization set forth in the opinion of this court handed down at 2 p. m. of the 29th day of March, 1916, after full hearing and consideration of the applications made to it. In the course of that opinion we held: "That the District Court in its discretion has full power to make an order concerning an upset price upon the sale, if such procedure should be deemed desirable by the court. Of course, hearing may well be accorded to these petitioners and such others as may appear to have any interest in the proceeding for the purpose of aiding the court in ascertaining and determining what the upset price should be." And summarizing the principal points involved we held and decided that: "The trustee, Equitable Trust Company, had a right to proceed to foreclosure as it prayed against the Western Pacific. The Denver Company was not a necessary or proper party to such foreclosure proceedings, and, the Denver Company not being within the jurisdiction of the court and the court having no custody of its property, no order could be made compelling it to interplead in the foreclosure suit. The trustee had a right to begin action against the Denver Company in New York to enforce any rights accruing under contract B to the bondholders, and the District Court in California had no power to interfere with the trustee in proceeding with such action. That part of the order which would compel the Denver Company and the Missouri Pacific Company to become parties to interplead having been in excess of jurisdiction, writ of prohibition is properly invoked. U. S. v. Mayer, 235 U. S. 67, 35 Sup. Ct. 16, 59 L. Ed. 129; McCellan v. Carland, 217 U. S. 268, 30 Sup. Ct. 501, 54 L. Ed. 762; In re Rice, 155 U. S. 396, 15 Sup. Ct. 149, 39 L. Ed. 198. We shall deny the petition for a writ of mandamus, because every presumption is that the District Court, being advised of the views of this court, will proceed to give the parties full measure of relief. "The order appealed from is reversed. Petitioner's application for writ of prohibition is granted. The application for writ of mandamus is denied." It is manifest from that decision of this court that nothing remained for Judge Van Fleet to do but to fix the upset price (in the event he should find the case a proper one for such action) and to enter the decree agreed upon by all of the parties to the suit; this court denying the mandate asked for by the complainant to that end only because it felt assured that the judge of the District Court would promptly carry into execution the decision of this court, as, indeed, the records show he had declared his intention of doing, without being compelled to do so by writ of mandate. And that is exactly what he was proceeding to do, on the motion of the complainant itself, when interrupted by the filing of an affidavit of one of its chief officers, which the records show had been largely prepared during the time the complainant had been urging the District Court to enter a decree in its favor, and during the time it was seeking at the hands of this court a writ compelling him to do so. That affidavit, designed to disqualify Judge Van Fleet, was, according to the testimony of Mr. How, in preparation in San Francisco during the days of March 18, 19, and 20, 1916, during all of which time the complainant was maintaining before that judge a proceeding for the entry by him of a decree of foreclosure in the suit, and during which time it was maintaining in this court proceedings to compel him to do so. That affidavit, it appears from the records, was not completed until March 29, 1916, when it was executed in the city of |