KLEVER et al. v. SEAWALL et al., 65 F. 373

TAFT, Circuit Judge (after stating the facts). Paragraph 6 of

section 5019 of the Revised Statutes of Ohio provides that there may be united in one cause of action “claims to recover real property, with or without damages for the withholding thereof, the rents and profits of the same, and the partition thereof.” “The action for damages for withholding real property and for rents and profits,” under the Ohio Code, is the same as the action of trespass for mesne profits at common law. McKinney v. McKinney, 8 Ohio St. 423, 428.

The amended petition united three canses of action—First, a suit for recovery of the possession of laud; second, an action for trespass for mesne profits; and, third, an action for partition. The judgment entered December 16, 1891, found for the plaintiffs on the first cause of action, and adjudged that they were entitled to the possession of the undivided one-third interest sued for, and awarded the costs on that issue. This was, so far as the first cause of action was concerned, a final judgment.

Had the plaintiffs then chosen to aslc for it, they might have had execution on the judgment, and the issuance of a writ of possession. A judgment is final when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined. St. Louis, I. M. & S. R. Co. v. Southern Exp. Co., 108 U. S. 24, 28, 2 Sup. Ct. 6. It cannot affect the finality ‘of a judgment that the cause of action upon which it was rendered was united in the same petition with other causes of action which have not yet been finally adjudicated.

As the judgment of December 16, 1891, adjudging title and right of possession in plaintiffs, was a. final judgment, the time within which a writ of error could he brought to review it began to run from that date, and expired six months thereafter. The writ of error in this case was not sued out until August 28, 1893. We have no power, therefore, to review the correctness of that judgment, and the first assignment, which seeks to have us do so, cannot be sustained. The second and third assignments of error are directed.to the action of the circuit court in refusing to set aside the judgment of December 16,1891.

The entry denying the motion for this purpose was made May 16,1893, so that, if that action of the circuit court was a final order to which error lies, the writ was sued out in due time. Defendants, by their motion, sought to have the judgment set aside, on the ground that the court had erred in holding the defendants in default for answer to the amended petition, when there was on file an answer of one of the defendants to the original petition, which was broad enough fully to make an issue with the averments under the first causé of action on which judgment was rendered.

The motion was made nine months after the rendition of the judgment, and three months after the close of the term at which it was entered. The court is conceded to have had jurisdiction of the parties ancl the subject-matter. No fraud in procuring the judgment is alleged, but only irregularity, and that consists solely in the court’s finding a default to exist when, as the defendants claim, it was not in law a default. It is true there is an averment that the judgment was entered without notice to counsel for defendant, but, if they were in default, they were not entitled to notice.

Before we can consider whether the court was in error in holdingdéfendants to he in default, vye are, therefore, confronted with the question whether a circuit court of the United States has the power to set aside a final judgment for error of law after the term at which the judgment was entered, and when no motion for the purpose had been filed before the close of the term. In Bronson v. Schulten, 104 U.

S. 410, it was sought, long after the term at which it had been rendered, to correct a judgment for the recovery of duties erroneously assessed and collected, in which the amount of the recovery was much less than it should have been, through an error of a master to whom the determination of the amount had been referred by agreement of parties. The circuit court granted the motion, but this action was reversed by the supreme court. Mr.

Justice Miller, in speaking for the court, said (page 415): “It is a general rule of the law that all the judgments, decrees, or other-orders of the courts, however conclusive in their character, are under the control of the court which pronounces them, during the.term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.

But it is a rule equally well established that, after the term has ended, all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and, if errors exist, they can only be corrected by such proceedings, by a writ of error or appeal, as may be allowed in a court which, by law, can review the decision.

So strongly has this principle been upheld by this court that, while realizing that there is no court which can review its decision, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered.

And this is placed upon the ground that the case has xjassed beyond the control' of the court.” The learned justice then referred to the common-law writ of error coram vobis by which a court, having rendered judgment, was enabled .to set it aside after the term, for some error in fact which had escaped attention and was material in the proceeding,—as that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert, or for some misprision of the clerk,—and pointed out that, in practice, this writ had been supplanted by a motion for the same purpose.

Pickett’s Heirs v. Legerwood, 7 Pet. 144. But the conclusion was reached that the writ coram vobis did not “reach the facts submitted to a jury, or found by a referee or by the court sitting to try the issues,” and therefore that it did not reach the case then before the court. If that be true, a fortiori does it not reach alleged errors of law upon which the judgment was based. And this is expressly held in the case of Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901. See, also, Hickman v. Ft. Scott, 141 U. S. 415, 12 Sup. Ct. 9; Bank v. Moss, 6 How. 31; Noonan v. Bradley, 12 Wall. 121; Sibald v. U.

S., 12 Pet. 488. Nor can the plaintiffs in error, derive any aid from the remedies for correcting judgments after the term provided by the statutes of Ohio. In the case of Bronson v. Schulten, where the judgment sought to be set aside was rendered in the circuit court of the United States, sitting in New York, a statute of that state was relied on as furnishing ground for the action of the lower court in modifying the judgment after the term. To this Justice Miller made reply: “Tbe question relates to tbe power of tbe courts, and not to tbe mode of procedure.

It is whether there exists in tbe court the authority to set aside, vacate, or modify its final jinlgmonls after (lie term at which ihey were rendered; and this authority can neither he conferred upon nor withheld from the courts of ihe United States toy the statutes of a state or the practice of its couri s.” We are therefore of opinion that the motion to set aside the judgment of December 16, 1891, upon the first cause of action,—i. e. the recovery of the land,— was rightly overruled, for want of power in the court to grant it. There is no hardship in this result.

The defendants below, being in court as parties, were charged with notice of everything done in the case (White v. Crow, 110 U. S. 183, 4 Sup. Ct. 71), and, at any time within six months after the judgment, could have brought a. writ of error to review' the holding of the court in respect to the existence of a default. If any equitable reason exists for setting aside the judgment or enjoining its execution, that should be taken advantage of by bill in equity. The writ coram vobis (or the motion which is its substitute in practice) does not afford a remedy on such a ground.

The next assignments of error are to the action of the court in overruling the motions of the defendants to set aside the report of the commissioners in partition and the report of the special master. The only reason brought to the attention of this court by the brief or argument of counsel for plaintiffs in error why these motions should have been granted is Unit the plaintiffs in error (the defendants below), after the reports had been made, filed an application to have accounted to them all the improvements made by them and their grantors in bona fide reliance upon a' title of record since 1823.

It; is said that they were entitled to an allowance for improvements under the occupying claimant’s law of Ohio.

Section 5786, Rev. St.

Ohio, provides that a person in quiet possession of lands or tenements, and claiming to own the same, who lias obtained a certain specified color of title to, and is in possession of, the same, without fraud or collusion on his part, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant or his heirs are fully paid the value of all lasting and valuable improvements made on the land by him, or by tlie person under whom he holds, previous to receiving actual notice by commencement of suit on such adverse claim of title, god ion 5788, as amended by act of April 21, 1890 (87 Ohio Laws, 237), provides that the “court rendering judgment against the occupying claimant, in any case provided for by this sub-division, shall at the request of either" party cause a journal entry to he made; and the cause shall then proceed as in other civil cases.”

Section 5789 (as amended) provides that, “for the trial of the question of fact remaining undisposed of, a jury shall be impaneled and sworn as in other civil cases and shall at once proceed,” etc. Sections 5792, 5793, 5794, and 5795 provide the forms of judgment to meet the possible verdicts of the jury and judgments of the court as to the improvements, their value, and tire good faith with which they had been made, together with the proper offsets against the same, arising from rents and profits withheld from the successful claimant.

It is obvious to us that, in order that a defendant in an action for the recovery of real estate may avail himself of the benefit of the occupying claimant law, he must give notice of his claim to the court before or at the time-judgment for plaintiff on the main action is entered, or at least before the term has passed in which such judgment is entered. Otherwise the successful plaintiff can never know when he has a clear title to the land adjudged to be Ms. Such seems to be the opinion of the supreme court of Ohio; for in Raymond v.

Ross, 40 Ohio St. 848, it was held that a claim for improvements under the occupying claimant law was barred by a judgment for the recovery of the real estate, because, if valid, the claim for improvements should have been set up in the main action. We tMnk, therefore, that the default judgment of December 16, 1891, was a bar to any claim by the defendants below under the occupying claimant’s law.

Secondly, it is urged that, in the partition of the land, the defendants are entitled to compensation for the value of permanent improvements made by-them in good faith, and especially mat they may use this as a set-off to the claim for rents and profits. Such relief is frequently accorded in equity, but the difficulty in doing so in the present case is that the action below was on the law side of the court, where no equitable remedy can be administered.

The court below treated the action for partition as an action for partition at law, and held that such an action lay in Ohio, and could be united with an action for the recovery of the real estate and mesne profits. We do not understand that, under the writ of partition at common law, there was any power to order a partition sale and division of the proceeds, and yet this is what the court did in regard to the 25-acre tract of Edmund Klever. From tMs course, we must infer that the circuit court was proceeding under the partition statute of Ohio.

The question, therefore, arises whether a partition under the OMo statute is cognizable by a federal court of law, or should be properly sought by bill in equity. The question has not been argued or assigned for error, but it is so fundamental in the partition proceedings, wMch are attacked, that we cannot overlook it. It is too important to decide it without argument. We shall therefore affirm the default judgment and the judgment for mesne profits, and set the cáse down for reargument on the point above stated.