GRAHAM et al. v. SWAYNE, 109 F. 366

McCORMICK, Circuit Judge, after staling the case as above, delivered the opinion of Hie court. Itule 88 provides: “Ao rehearing shall be granted after the term at which (he final decree of court shall have been entered and recorded, if an appeal lies to the supreme court.” If a petition or motion for rehearing or for opening the decree is filed in season, and entertained by the court, then the decree, although entered in form, does not discharge the parties from their attendance in the canse. They are bound to follow the petition thus pending to the next term. Smelling Co. v. Billings, 150 U. S. 31, 14 Sup.

Ct. 4, 37 L. Ed. 986; Goddard v. Ordway, 101 U. S. 745, 25 L. Ed. 1040. To be filed in season, it must be filed during the term at which the decree. sought to be opened is rendered; and, besides this, Hie record must show in some way that it was brought to the attention of the court. The prescription of rule 88 must be construed to mean that a relmaring cannot be granted after the lapse of the term, unless application is made therefor during the term; and, being entertained, the decree is thereby prevented from passing beyond the control of the court. Smelting Co. v. Billings, supra.

The fact of the application or motion to reopen the decree and grant a new hearing may be made to appear by an entry on the minutes of the court of the doings of the court for the term. “A paper may be filed in the proper office, and yet not be brought to the attention of the court while sitting in judgment; but, when what it calls for appears on the minutes of actual proceedings, it must be presumed that the court, in some form, gave it judicial attention, and that it was presented in some regular way.” Goddard v. Ordway, supra.

In this case the return of the respondent shows that the motion filed on September 4, 1899, “was never presented to the respondent as judge, nor was the said motion entertained in any way by the said court, during the term in which the said decree was entered, which expired on the 26th day of January, 1900.” In reference to judgments pro confesso, the equity rules provide that “such decree rendered shall be deemed absolute, unless the court shall at the same term set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant.” The rule provides further that this may not be done by the court unless upon terms which are specified.

Rule 19. We think it is manifest from the record as shown in this application, independent of the statement made by the respondent in his return to the alternative writ, that at the decree term nothing was done with reference to the motion to open the decree further than the acceptance of service, as above recited, and the filing of the motion notice, and acceptance with the clerk of the court. This was done more than five months before the expiration of the term.

It is insisted that the court entertained the motion because at the subsequent term counsel presented it and argued it, and the judge then showed him the courtesy to examine it, after which examination by the judge the court not only did not entertain it, but refused to entertain it, on the ground that he had no authority to entertain it at the subsequent term, as no action had been had thereon at the decree term by the court, and nothing appeared in the minutes of the proceedings of that term to show that it had in any manner been brought to the attention of the court, or entertained by the court, unless the filing with the clerk and notice to the adverse party can be taken to have brought it to the attention of the court, and to have constituted the entertaining thereof by the court, within the terms of the decisions construing rules 19 and 88, above referred, to.

In the absence of controlling authority to that effect, we are unwilling to so hold, and we therefore adjudge that the petition for mandamus should be, and it is hereby, denied.