126.

Terms for extension. Where the answer tendered by defendants could easily have been prepared in an hour, and no reasonable excuse was shown for a delay of several weeks in its preparation and service, an order requiring defendants to give bond to pay any judgment plaintiff might recover, as a condition to being permitted to answer out of time, was "just" within section 103, L. O. L., providing that the court may allow an answer out of time upon such terms as may be just. Kosher v. Stuart, 64 Ore. 123, 121 Pac. 901. 127. Pennsylvania.

135.

Statutory provisions. When an act to be done as provided in this code relates to the pleadings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation, service, filing, or presentment of bills of exception, or of amendments thereto, or to the service or filing of notices other than of appeal, the time allowed by this code may be extended upon good cause shown, by the court in which the action is pending, or a judge thereof. Comp. Laws Utah (1917) 7023.

notice and a good cause shown by affidavit and upon just terms, extend the time within which any act or proceeding in an action or special proceeding may be taken (except the time for appeal) and may do so after the time has expired. Wis. Stats. (1935) 269.45.

SUBDIVISION (C)

COMMENT

138. Abrogation of former principles.

a

Careful note should be taken of the apparent effect of subdivision (c) on former principle of practice, in accordance with which court's power over its judgments ended with the term. In Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797 (1881) the rule was laid down that after the term of a court has ended, all final judgments and decrees of a court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify or correct them; and that if errors exist they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court of competent appellate jurisdiction. This principle has often been reiterated. Thus, in United States v. Mayer, 235 U. S. 55, 59 L. Ed. 129, 35 Sup. Ct. 16 (1914), Mr. Justice Hughes said: "In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term. There are certain exceptions. In the case of courts of common law, and we are not here concerned with the special grounds upon which courts of equity afford relief,-the court at a subsequent term has power to correct inaccuracies in mere

matters of form, or clerical errors, and, in civil cases, to rectify such mistakes of fact as were reviewable on writs of error coram nobis, or coram vobis, for which the proceeding by motion is the modern substitute. These writs were available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon, and were material to the validity and regularity of the legal proceedings itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdiet or interlocutory judgment,for, it was said, 'error in fact is not the error of the judges, and reversing it is not reversing their own judgment.' So, if there were error in the process, or through the default of the clerks, the same proceeding might be had to procure a reversal. But if the error were 'in the judgment itself, and not in the process,' a writ of error did not lie in the same court upon the judgment, but only in another and superior court."

In Kingman & Co. v. Western Mfg. Co., 170 U. S. 675, 42 L. Ed. 1192, 18 Sup. Ct. 786 (1897) Mr. Chief Justice Fuller said: "Unquestionably it is the general rule that after the expiration of the term all final judgments, decrees or other final orders of the court thereat rendered and entered of record, pass beyond its control unless steps be taken during that term by motion or otherwise, to set aside, modify or correct them." Mere filing of the motion was held to save the point, however. In Ayer v. Kemper (C. C. A. 2d, 1931), 48 F. (2d) 11, Judge Swan said: "Several Supreme Court decisions contain expressions which imply that to carry over a motion to a subsequent term it must be 'filed and entertained' during the

judgment term. See cases cited and discussed in Payne v. Garth, 285 Fed. 301, 303–309. But certainly in actions at law it is enough if the motion be filed within the term, though not brought to the court's attention until later."

In Delaware, L. & W. R. Co. v. Rellstab, 276 U. S. 1, 72 L. Ed. 439, 48 Sup. Ct. 203 (1928), Mr. Justice Holmes said: "However strong may have been the convictions of the district judge that injustice would be done by enforcing the judgment, he could not set it aside on the ground that the testimony of admitted perjurers was perjured also at the second trial. The power of the court to set aside its judgment on this ground ended with the term." See also Tubman v. Baltimore & O. R. Co., 190 U. S. 39, 47 L. Ed. 946, 23 Sup. Ct. 777 (1903); Gagnon v. U. S., 193 U. S. 451, 48 L. Ed. 745, 24 Sup. Ct. 510 (1904); Wetmore v. Karrick, 205 U. S. 141, 51 L. Ed. 745, 27 Sup. Ct. 434 (1907); In re Metropolitan Trust Co., 218 U. S. 312, 54 L. Ed. 1051, 31 Sup. Ct. 18 (1910).

The apparent purport of above subdivision (c) is to abrogate these principles. Of course it has been the rule for some time that trials in progress have not been discontinued by the advent of a new term. U. S. C. Title 28, § 12.

Speaking of above subdivision (c) and also of Rule 59 (b), Gustavus Ohlinger said in "Questions Raised by the Report of the Advisory Committee," 11 U. of Cincinnati L. Rev. 445, 466: "Both these rules overlook the question of power after term. In Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797 (1881) a party in reliance upon a New York statute, and by favor of the Conformity Act, sought to open up a judgment of a federal court after term. The Supreme Court held that 'the question relates to the power of the courts

and not to the mode of procedure,' and that the New York statute could not confer a power that was lacking at common law."

Before the Committee on the Judiciary of the House of Representatives, March 4, 1938, Edgar B. Tolman said, speaking of Rule 6 (c): "It means that the mere passing of the term of court does not end the power of the court to do what he I could have done within the term time." Dealing with the relationship between Rule 6 (c) and Rule 60 (b) Maj. Tolman said in reply to a question by Representative Abe Murdock: "Rule 60 (b) requires the motion to be made in the kind of cases there dealt with, not exceeding 6 months after the judgment. You cannot come in because of Rule 6. That Rule removes an obstacle. It does not give you a new right. You get the right to open a judgment from other rules and from substantive law." Hearings, pp. 133, 135.

As to terms of the various District Courts, see U. S. C. Title 28, § 141 et seq.

139. Duty to take notice of term.

Litigants are under duty without notice to take cognizance of a regular term of court and be present in person or through counsel to protect their interests. Cage v. Cage (C. C. A. 1934), 74 F. (2d) 377.

SUBDIVISION (D)

COMMENT

140. Affidavits.

Note should be taken of the requirement that supporting affidavits must be served with the motion, also that the use of opposing affidavits is sanctioned. This will not be altogether an innovation, as state codes sometimes provide that notices of motion must be accompanied by affidavits, if such are to be used on the hearing. See, for example, Iowa Code (1935) 11233.

141. State practice as to time.

State statutes vary as to the time required for giving notice of motion. Quite generally, the application of the general provision made is limited to cases "where the time for service is not otherwise prescribed." Among general provisions calling for one day's notice are 1 Rev. Stats. Mo. (1929) 813; three days', Rev. Code Ariz. (1928) 3796; four days', 1 S. C. Code (1932), 448. Five days' notice is prescribed by N. M. Stats. Ann. (1929) 105-702; Canal Zone Code (1934) T. 4, § 933. Comp. Laws S. D. (1929) 2594 requires six days "but the court or judge by order to show cause may prescribe a shorter time." New York Civil Practice Rule 60 requires eight days "except where attorneys for the several parties have their offices in the same city, or village, when notice of five days may be given." Wisconsin Stats. (1935) 269.31 and 2 Comp. Laws N. D. (1913) 7947 also require eight days "but the court or judge may, by an order to show cause, prescribe a shorter time." N. C. Code (1931), 912, calls for ten days, with a proviso for prescribing a shorter time.

Some states have provisions calling for five days' notice if both parties reside in the county where the court is held, otherwise ten; with still further extensions of time if the service is by mail. See 3 Rev. Codes Mont. (1921) 9774; Comp. Laws Utah (1917), 7019.

In some states the provision is that the notice shall be served "a reasonable time before the hearing." See Comp. Stats. Neb. (1929) 20-910; 2 Page's Ann. Ohio Gen. Code (1926), 11372; 1 Okla. Stats. (1931) 261. Wyo. Rev. Stats. (1931) 89-1072.

142. Adherence to time limits.

In practice, courts have usually recognized some elasticity in observance of the strict time limits pre