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CASES ON REHEARING.

CASES IN WHICH REHEARINGS HAVE BEEN GRANTED OR DENIED.

.154 Fed. 290

Benker v. Meyer..

Rehearing denied.
City of St. Charles v. Stookey...

Rehearing denied. Corbin v. Holmes..

Rehearing denied.

.154 Fed. 772

.154 Fed. 593

.154 Fed. 475

Forderer v. Schmidt.....

Rehearing denied.

.154 Fed. 829

Hessian v. Patten....

Rehearing denied. Holmes v. Corbin..

Rehearing denied.

..154 Fed. 593

.153 Fed. 952

Perkins v. Gibbs...

Rehearing denied.

. 154 Fed. 606

Rogers v. Penobscot Min. Co.......

Rehearing denied.

155 F.

(xxxv) †

CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE

CIRCUIT AND DISTRICT COURTS.

NELSON et al. v. MEEHAN et al.

(Circuit Court of Appeals, Ninth Circuit. June 7, 1907.)

No. 1,376.

1. APPEAL AND ERROR-APPEALABLE ORDER-ALASKA CODES.

An order made by a district court of Alaska setting aside a prior judgment of such court and granting a new trial is not appealable under Alaska Codes, pt. 4, c. 51, $ 504, which gives the right of appeal from a "final judgnient or order," but such order may be reviewed on appeal by the Circuit Court of Appeals for want of jurisdiction in the court to make it.

[Ed. Note.-Finality of judgments and decrees for purposes of review, see note to Brush Electric Co. v. Electric Imp. Co. of San Jose, 2 C. C. A. 379; Central Trust Co. of New York v. Madden, 17 C. C. A. 238; Prescott

& A. C. Ry, Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.] 2. JUDGMENT-VACATION FOR FRAUD-POWER OF COURT AFTER TERM.

A court of equity has power to vacate its own decree at any time during the term at which it was entered on the ground that it was procured by means of the perjured testimony of the prevailing party, notwithstanding the fact that it has been affirmed on appeal; but in the absence of a statute conferring it, such power does not extend beyond the term. such case, fraud to confer jurisdiction must consist in something extrinsic or outside of the matter which was actually tried or so in issue that it could have been tried in the suit in which the decree assailed was entered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, &$ 666

668.] 8. SAME-ALASKA STATUTE.

Alaska Code Civ. Proc. $ 93, which authorizes a district court to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect, does not confer power to vacate a judgment after the term on the ground that the issues were erroneously decided because of perjured testimony, the motion being based on affidavits

going to the identical issues tried before. Appeal from the District Court of the United States for the Third Division of the Territory of Alaska.

Miller, West & De Journel, N. V. Harlan, and West, De Journel & O'Neill, for appellants.

John L. McGinn, Martin L. Sullivan, McGinn & Sullivan, J. C. Campbell, W. H. Metson, F. C. Drew, and F. P. Deering, for appellees. Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

155 F. 1

HUNT, District Judge. O. A. Nelson and G. N. Hensley brought an action against Matt Meehan and T. Larson in December, 1903, in the United States District Court for the territory of Alaska, to compel the specific performance of a contract by which Meehan and Larson agreed to give to the plaintiffs a one-half interest in a certain mining claim if the plaintiffs would sink thereon three holes to bed rock. The cause was tried by the court, and it was found that the plaintiffs had fulfilled the terms of the contract by sinking three holes to bed rock, and that as a conclusion they were entitled to have conveyed to them by the defendants the half interest specified in the contract. Thereafter, and on August 17, 1904, a decree was entered in favor of the plaintiffs in accordance with the findings of the court. Defendants moved for a new trial upon the grounds of insufficiency of evidence to justify the decision and errors of law duly excepted to upon the trial. This motion was overruled upon August 17, 1904. The defendants appealed to this court, and upon May 8, 1905, the decree of the District Court was affirmed. Meehan v. Nelson, 137 Fed. 731, 70 C. C. A. 165. The mandate of the Circuit Court of Appeals was filed in the District Court of the proper district in Alaska on June 13, 1905; thereafter, on July 26, 1905, the defendants filed in the District Court a motion for an order vacating and setting aside the judgment and decree theretofore rendered by the District Court on August 17, 1904, which had been affirmed by this court, as heretofore stated. This motion was based upon the ground that the judgment and decree of the court had been founded upon the testimony of O. A. Nelson, one of the plaintiffs in the cause, and that he had willfully and corruptly sworn falsely by stating that he had sunk the three holes to bed rock and performed the conditions of the agreement which was made the basis of the suit in specific performance, that the court had been deceived, and that appellees did not discover the true condition of affairs until after the affirmance of the decree of the lower court by the Court of Appeals. The defendants accompanied their motion to vacate with a number of affidavits wherein affiants swore that hole No. 3 sunk by Nelson and Hensley did not go to bed rock as required by the terms of the agreement heretofore referred to, and that the gravel under the bottom of the No. 3 shaft to bed rock had never been removed. On July 29, 1905, the plaintiffs appeared specially and only for the purpose of objecting to the jurisdiction of the court to entertain or pass upon the motion filed by the defendants. On August 14, 1905, the court overruled the objections to the jurisdiction of the court to entertain the motion. After the court overruled plaintiffs' objections to the jurisdiction of the court, plaintiffs, meeting the issue made by the affidavits of defendants, filed a number of counter affidavits tending to show that the holes had been sunk to bed rock, and that after a winter has elapsed since ground has been disturbed it is very difficult to tell by looking at gravel in a drift which is gravel in place and which is gravel that has been disturbed or caved in; that a shaft generally caves in, and that during the winter following this process of caving the whole mass freezes and forms a compact cohesive body which it is almost impossible to distinguish from gravel in place. After the submission of these affidavits by both sides, and with the consent of the parties to the litigation, the presiding judge made a personal inspection of the property, and it was his opinion that the Nelson and Hensley shaft No. 3 was not sunk to bed rock, that its lowest point was at least 5 feet 6 inches from bed rock, and that Nelson had deliberately committed perjury upon the trial of the case. The court, therefore, on September 16, 1905, ordered that the judgment and decree entered upon August 17, 1904, be set aside, and that the defendants be granted a new trial. The plaintiffs now prosecute this appeal from the order of the District Court so made and entered.

Questions of jurisiliction are presented by appellants and respondents. Appellants contend that there was no jurisdiction in the lower court to set aside and vacate the decree made in favor of Nelson and Hensley and to grant a new trial, inasmuch as it appears that the matters presented in the Meehan and Larson motion to vacate the decree and to grant a new trial are the identical questions that were tried and decided in the former suit hereinbefore referred to; hence that it was not within the power of the lower court, after the expiration of the term in which the decree was rendered, to vacate its decree merely because it was founded upon perjured testimony. On the other hand, the respondents challenge the jurisdiction of this court by a motion to dismiss the appeal, for the reason that the judgment or decree of the lower court vacating the former decree and granting a new trial is not a final judgment or decree from which an appeal may be taken under section 504, pt. 4, c. 51, of the Codes of Alaska. Section 504 of the Alaska Codes, so far as applicable, provides that an appeal and writ of error may be taken and prosecuted from a final judgment or order of the District Court of Alaska to the United States Circuit Court of Appeals for the Ninth Circuit where the value of the subjectmatter exceeds $500. A judgment is defined by the Codes of Alaska (section 234, Carter's Annotated Codes) as “the final determination of the rights of the parties in the action.” In Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73, the Supreme Court said that a judgment or decree, to be final within the meaning of the acts of Congress giving to the Supreme Court jurisdiction on appeals and writs of error, “must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here the court below would have nothing to do but execute the judgment or decree it had already rendered.' An order granting a new trial continues a case for further proceedings; it does not finally determine the rights of the parties, but suspends the finality of the original judgment entered until the issues are tried and decided anew. Black on Judgments, $ 34. These definitions of what constitutes a final judgment that may be appealed from exclude an order vacating a judgment and granting a new trial made in the same cause. It therefore follows that our inquiry must be limited to the question whether or not the District Court' had power to make the order it did. If it had that power, whether it was wisely or unwisely exercised, is not for us to decide,

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