Imágenes de páginas
PDF
EPUB
[blocks in formation]

ment to be vacated in order that an entry may be made in conformity to the truth."

There is no suggestion that such action can be "brought forward" without notice to the adverse party, or a correction made where, as in the present case, the party has lost a valuable right in reliance upon a judgment of dismissal.

And if it be held that the mistake in this case, though not of the clerk, was of a clerical character. and within the rule permitting the correction of such mistakes by the court, a point unnecessary to decide in this case, such correction cannot be made after term without notice, certainly where the changed condition of the parties in view of a new right acquired would render it prejudicial to render a new judgment.

The appellant also relies upon the proposition that the Massachusetts statute, Revised Laws of Massachusetts, chap. 193, sec. 22, provides that if a judgment is rendered in the absence of the petitioner and without his knowledge a writ of review may be granted upon petition filed within one year after the petitioner first had notice of the judgment; otherwise within one year after the judgment was rendered. But we cannot agree that this remedy supplies the want of jurisdiction in the Massachusetts court to render, after the term and without notice, a new and different judgment against the defendant in error. Whatever his remedy may be in the state courts, want of jurisdiction may be pleaded wherever the judgment is set up against him in another forum.

We find nothing in any decision of this court which sanctions any different procedure, and the cases in the state courts which hold that notice is necessary after the term before a judgment can be set aside are numerous. Some of them will be found in the note in the margin.1

1 Murphy v. Farr, 6 Halstead (N. J.), 186; Martin et al. v. Bank of State, 20 Arkansas, 629; De Witt et al. v. Monroe & Brother, 20 Texas, 289; Berthold v. Fox, 21 Minnesota, 51; Cobb v. Wood, 1 Hawkes (N. Car.), 95; Hill v. Hoover, 5 Wisconsin, 386; Perkins et al. v. Hayward, 132 Indiana, 95, 100; Bryant v. Vix, 83 Illinois, 1, 15; Keeney v. Lyons, 21 Iowa, 277; Weed v. Weed, 25 Connecticut, 337; Fischchessar v. Thompson, 45 Georgia, 459, 467.

[blocks in formation]

To sanction a proceeding, rendering a new judgment without notice at a subsequent term, and hold that it is a judgment rendered with jurisdiction, and binding when set up elsewhere, would be to violate the fundamental principles of due process of law as we understand them, and do violence to that requirement of every system of enlightened jurisprudence which judges after it hears and condemns only after a party has had an opportunity to present his defense. By the amendment and new judgment the proceedings are given an effect against the defendant in error which they did not have when he was discharged from them by the judgment of dismissal. By the judgment of dismissal the court lost jurisdiction of the cause and of the person of the defendant. A new judgment in personam could not be rendered against the defendant until by voluntary appearance or due service of process the court had again acquired jurisdiction over him. As a matter of common right, before such action could be taken he should have an opportunity to be heard and present objections to the rendition of a new judgment, if such existed.

We find no error in the judgment of the Court of Appeals overruling the demurrer to the second plea, and the same is Affirmed.

MR. JUSTICE BREWER took no part in this case.

205 U.S.

Statement of the Case.

UNITED STATES v. MITCHELL.

APPEAL FROM THE COURT OF CLAIMS.

No. 180. Argued January 25, 1907.-Decided March 18, 1907.

Section 7 of the act of April 26, 1898, 30 Stat. 364, was not enacted to give increased pay for the discharge of the ordinary duties of the service but to give compensation for the greater risk and responsibility of active military command; and the assignment under orders of competent authority must be necessary and non-gratuitous.

A second lieutenant of the United States army who in the absence of the captain and first lieutenant assumes command of the company in regular course under § 253 of the Army Regulations of 1895, is not exercising under assignment in orders issued by competent authority, a command above that appertaining to his grade within the meaning of § 7 so as to obtain the benefit of the statute, even though a regimental special order may issue directing him to assume the command, and this action may be attempted to be ratified by special order of the commanding general where it is not apparent that any necessity for special direction existed.

Where the United States filed no set-off or counterclaim the court will not overhaul the allowance made to an officer of the army by the auditor of the War Department. An overpayment erroneously made does not determine the legality of the claim.

41 C. Cl. 36, reversed.

THE Court of Claims filed the following findings of fact and conclusions of law:

"I. The claimant, Donn C. Mitchell, was enrolled in the Volunteer Army, during the Spanish war, as second lieutenant of Troop E, First Ohio Volunteer Cavalry, on the 3d day of May, 1898. He served in the grade of second lieutenant until promoted to first lieutenant October 20, 1898. He was mustered out as first lieutenant October 23, 1898. His entire service was within the limits of the United States.

"II. While on duty as second lieutenant of the First Ohio VOL. COV-11

[blocks in formation]

Volunteer Cavalry at Huntsville, Ala., during the Spanish war, claimant received the following order:

[ocr errors]

"Headquarters 1st Ohio Volunteer Cavalry, 'Camp Wheeler, Huntsville, Ala., August 24, 1898.

"Special Orders, "No. 44.

}

“'I. 1st Lieut. William D. Forsyth, 1st Ohio Volunteer Cavalry, having been ordered before a board for examination for appointment as second lieutenant in the Regular Army, is hereby relieved of the command of Troop E. He will turn over the property, funds, and records of the troop to his

successor.

“'II. 2d Lieut. Donn C. Mitchell, 1st Ohio Volunteer Cavalry, is hereby appointed to the command of Troop E. He will receipt to Lieut. Forsyth for the property and funds pertaining to the troop.

"By order of Lieut. Col. Day:

[ocr errors]
[blocks in formation]

'Captain and Regtl. Adj. 1st Ohio Vol. Cav.'

"This order was approved by the commanding general in the field in the following orders:

"Headquarters Fourth Army Corps,

'Camp Wheeler, Huntsville, Ala., September 2, 1898.

'Special Orders,

"No. 97.

[blocks in formation]

"II. It appearing from evidence that the following-named officers of the First Ohio Volunteer Cavalry have exercised the functions of commanders above that pertaining to the grades held by them from and after the dates set opposite their respective names, the assignment thereto contemplated by General Orders, No. 86, current series, Adjutant-General's Office, is confirmed, namely:

[blocks in formation]
[blocks in formation]
[ocr errors]

'2d Lieut. Donn C. Mitchell, as captain, from August 24th,

1898.

*

"By command of Major-General Coppinger:

""(Signed)

CLARENCE K. EDWARDS, "Assistant Adjutant-General.'

"Under these orders claimant exercised command of Troop E from August 26, 1898, to October 23, 1898, when he was mustered out with his regiment.

"So much of G. O. No. 86, A. G. O., of 1898, as relates to the matter of pay for exercising a higher command, is as follows:

General Orders,
No. 86.

"Headquarters of the Army,

66 6

'Adjutant General's Office, ""Washington, July 2, 1898. "I. In section 7 of the act "For the better organization of the line of the Army of the United States," approved April 26, 1898, it is provided "That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised."

""The Attorney General has held that this clause "was intended to apply to all instances where the troops of the United States are assembled in separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain," but that "all service in the Army at the present time is not to be considered as operating against an enemy. Troops and their officers on the western frontiers, performing the same service as garrisons which is requisite in time of peace, and in no wise considered a part of the Army assembled to carry on the war with Spain, would not be within the meaning of the act."

""To entitle an officer to the pay of a grade above that

« AnteriorContinuar »