The opinion
McDOWELL, District Judge
(dissenting). I find myself unable, to concur in the opinion of the court. Leaving out of view section 1020, Rev. St., for the present, the judgment sought to be reviewed appears to me to be one by which a judgment rendered over 13 years previously was in large part vacated and set aside on the ground of excusable neglect in failing to make defense to the scire facias. Section 513 of the North Carolina Revisal of 1905 reads as follows:
“Mistake, surprise, excusable neglect. The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding.”
Waiving all question as to the time within which application for relief must be made under this statute, it seems to me settled that nq state statute, adopted since 1789, can give to a federal common-law court power to vacate or modify its judgment of a former term for excusable neglect or other distinctly equitable ground for relief. The reason for this conclusion is set out at length in the concurring opinion in Virginia, etc., Co. v. Harris, 151 Fed. 428, 430 , 80 C. C. A. 658 et seq., citing, inter alia, Bronson v. Schulten, 104 U. S. 410 , 26 L. Ed. 797 . Reference is made to the foregoing state statute because this case was argued wholly without reference to section 1020, U. S. Rev. St.
The next question is whether or not section 1020, Rev. St., can be considered as giving the court in or to which a recognizance or bail bond is given or is returnable the power to remit all or a part of the penalty of the bond after the end of the term at which final judgment is rendered on the scire facias. To my mind this statute gives the court no power after the end of the term at which final judgment .is rendered in the scire facias proceeding.
(1) It may be argued that there was no reason for enacting the statute if it relates only to the powers of the court at, or before, the term of trial of the scire facias proceeding. But this argument can be made with equal force as to any one of the numerous statutes which are merely declaratory of the common law. And it is not altogether improbable that the chief purpose of the statute was to emphasize the fact that the courts must not (at the trial term) remit the 'penalty where the default was willful.
*681 (2) Authority for the contention that power to set aside a judgment after the end of the term of rendition is certainly not very profuse. U. S. v. Duncan, Fed. Cas. No. 15,004, seems to be the only case to which any importance can he attached. And the statement in that case to the effect that Chief Justice Marshall’s reasoning in U. S. v. Feely, Fed. Cas. No. 15,082, “sanctions the exercise of the power as well after as before judgment” seems to me to be a misconception. That opinion relates only to the power of the court prior to final judgment on the scire facias. It seems to me to contain nothing indicating the existence of power in the Court of Exchequer (which alone rendered judgments on forfeited recognizances and bail bonds) to modify or vacate its judgments after the end of term of rendition.
(3) If the statute was intended to give the court power to relieve after the term of filial judgment, it is to be noted that nothing in the statute forbids the exercise of the power although the court may previous to judgment have heard evidence pro and con, and although the judgment may be a judicial ascertainment of disputed questions of fact anti not a default judgment. The motion or petition for relief in such a case is in effect also a petition for rehearing, which may be filed without notice and after any lapse of time. But it may be argued that the statute was intended to apply only to final judgments by default. No warrant for such theory is supplied by the statute itself; but if such assumption be entertained, we are driven to the very improbable theory that Congress contemplated and intended to relieve from the consequences of a double default — both the default in performance of the condition of the bond and the default on the scire facias. While it is true that the equity courts have power to relieve from judgments obtained by excusable neglect or mistake, it is difficult to conceive that Congress could have intended that the law courts could relieve for inexcusable neglect. Nor does it detract from the strength of this argument that the court below has seemingly adopted the inconvenient practice of calling the scire facias cases only after the last criminal trial of the term has been completed. There would seem to be no good reason why the scire facias cases should not he called on the first day of the term.
(4) It is too well settled to require discussion that the federal law courts, subject to some well-defined exceptions, have no power to vacate or modify a judgment after the end of the term of rendition of the judgment. It is therefore improper as it seems to me to construe a statute, which is either merely declaratory of the common law or which was intended to limit the common-law powers of the court, in such wise as to give the courts a very great increase of power. Agaiti, it would be difficult to find any principle of law more highly esteemed and more generally accepted as wise than the rule giving finality to judgments. “Interest reipublicse ut sit finis litium.” And this fact assuredly argues against a construction which makes of section 1020 an ordinance to the effect that a judgment on scire facias on a forfeited bail bond shall have no finality.
(5), If Congress had intended that the power under this statute could be exercised after the end of the term of rendition of final judg *682 ment on scire facias, assuredly seme time limit would have been prescribed within which the application for relief must be made.
(6) If the intent was to authorize the court to give relief after the end of the term, the statute has in effect given principals and sureties in bail bonds a right to sue the government, and this by implication and without notice or process to any officer of the government being required.
(7) The language, “may remit the whole or a part of the penalty,” used in the statute, is appropriate if relief granted prior to judgment on the scire facias was intended, and is very inappropriate as applied to relief granted after the term of rendition of judgment on the scire facias, if the intent were to authorize relief after the end of the term at which final judgment had been rendered, the only appropriate language would be “may vacate or set aside, in whole or in part, the judgment.”
(8) It seems unnecessary to do more than suggest some of the consequences which might and probably would flow from construing this statute as authorizing relief after the term of final judgment, such as the surprises that might be suffered by the government, and the trickery which the belated exercise of the power would breed. Such consequences assuredly argue against the probability of an intent to bring them about, or even to make them possible.
The power given by this statute is discretionary, and it may be that this court has no power to review a judgment remitting a penalty, if exercised before the end of the term at which final judgment is rendered. See Morsell v. Hall, 13 How. 212, 215 , 14 L. Ed. 117 ; Cook v. Burnley, 11 Wall. 672, 676 , 20 L. Ed. 29 ; Steines v. Franklin Co., 14 Wall. 15, 22 , 20 L. Ed. 846 ; authorities cited 1 Michie, U. S. Ency. 983-4. But if the construction hereinabove given the statute is correct, the judgment below was rendered by a court without jurisdiction, and no reason presents itself why this court should not decide that the trial court had no discretion and declare the nullity of the judgment. See In re Farmers’ Loan & Trust Co., 129 U. S. 206, 215 , 9 Sup. Ct. 265, 32 L. Ed. 656 .