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And this form must be complied with by a creditor desiring to oppose an application for a discharge.
The special commissioner, relying upon the cases of In re Chandler, 138 Fed. 637, 71 C. C. A. 87, and In re Servis (D. C.) 140 Fed. 222, states in the report:
"That before any notice of proper and legal specifications can be taken by the special commissioner, it must appear (a) that he is a creditor whose claim has been allowed in these bankruptcy proceedings; (b) that his claim is of such a nature that should such a discharge be granted the same will affect his claim."
In the Chandler Case the petition was held defective, in that the specifications did not show that the creditor had a claim which existed at the time of the bankruptcy proceedings, or which was provable in the proceeding. In the Servis Case the claim was one which could not be discharged in bankruptcy. It would therefore seem that these two cases are not conclusive, and the premise, that the creditor must be one whose claim has been allowed in the bankruptcy proceedings, it would seem, is broader than the statute. The creditor who has not proved his claim cannot share in any distribution, but, if he has a claim dischargeable in bankruptcy, and provable in the pending proceeding, he may oppose the discharge. In re Kuffler, 153 Fed. 667; In re Ray, Fed. Cas. No. 11,589; In re Shepard, Fed. Cas. No. 12,753; In re Chandler, 138 Fed. 637, 1 C. C. A. 87; In re Walker (D. C.) 96 Fed. 550. It is difficult to see how the requirements of the statute, as above set forth, can be met by an allegation,
a party interested in the estate of said
bankrupt,” if it is not met by the allegation, “Hyman Ensler being interested as a creditor in the estate of the said Jacob Nathanson, a bankrupt.” The word "party" may mean "person," or “party to the proceeding.” The record of the bankruptcy proceeding shows whether Hyman Ensler is a party to the proceeding, and the record can be used upon this motion for that or any material purpose. If he is a creditor having a debt which is not provable, or which the discharge in bankruptcy would not affect, that would seem to be a matter for an affirmative motion to expunge the claim, or to strike out the specifications, rather than to object to their form.
As to the second ground on which the special commissioner has decided that the specifications are insufficient, his action was based upon the decision in the Matter of Glass (D. C.) 119 Fed. 509, which holds that verification of specifications of objection should be in the form of a verification to a creditor's petition. No. 3, Supreme Court Forms. Form 58 does not provide for a verification, and no other form contains an analogous verification, except 129, which provides for the specifications of objections to a composition. The form of verification there prescribed is: "I.
the objecting creditor mentioned and described in the foregoing specification of objection, do hereby make solemn oath that the statements of fact contained therein are true, according to the best of my knowledge, information, and belief."
The use of this form is approved by Collier in his work on Bankruptcy (4th Ed., p. 639), and this form is approved in the Matter of Milgraum and Ost (D. C.) 129 Fed. 827.
The verification used by the creditor in the present proceeding, while not following exactly the language of either of the forms above referred to, was taken before an officer competent to take the oath, viz., a notary public, duly appointed, and states that the matters alleged are true of deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to these matters the deponent believes the statements to be true. As a matter of fact, there are no statements upon information and belief, and this makes the verification one based upon a statement of actual knowledge, and is therefore, so far as its reliability is concerned, equivalent to the verification under form 3. While not approving the use of a state form, and thus causing confusion and variation in pleadings, it seems that the verification to the specifications herein was sufficient to overcome the objections, and that the creditors should be allowed to reverify the pleadings in the exact language provided by the Supreme Court form No. 3.
As to the third ground stated by the special commissioner, sustaining the objection to the second and subsequent amended specifications, it would seem that the case of E. H. Godshalk Co. v. Sterling, 129 Fed. 580, 64 C. C. A. 148, is controlling, and that specification 2 is sufficient.
As to the other specifications, the decision of Judge Coxe, in the Matter of Goodale (D. C.) 109 Fed. 783, that “the facts relied upon to prove falsity” should be stated, does not mean that evidence must be set forth. The situation is similar to that in preparing an indictment upon a charge of perjury, where it must be plainly set forth upon what true statement of facts the charge of falsehood is based. This would require a statement in specification 3, setting forth whether the falsehood related to the existence of books, or to the witness' statement that he last saw them in November, or that they were on his desk, or that they consisted of one book. The specifications are too indefinite, unless the creditor intends to charge that there were no books, and, if so, that should be alleged as the truth and facts of the situation.
As to specification 4, likewise, the creditor should specify that the bankrupt did keep a ledger, if that is the issue to be raised.
Specification 5. The creditor should likewise state that the bankrupt did keep a book of expense, if that is the fact upon which the charge of falsity is based.
Specification 6. The specification should state that the bankrupt kept not even one book, if that is the particular in which the testimony is alleged to be untrue.
The amended specifications, therefore, from 2 to 6, should be made more definite and certain before the bankrupt is called upon to answer them; but, inasmuch as allegations of perjury have always been the source of great confusion and argument, and inasmuch as attorneys can hardly be held to the knowledge of criminal pleading expected from the prosecuting officers of the government, it seems to the court that the creditors should be allowed to make their specifications definite by further amendment of paragraphs 3, 4, 5, and 6.
The motion to confirm the report of the special commissioner will therefore be denied, and an order may be entered allowing the creditor
to further amend his specifications in the manner indicated, and the amended specifications will thereupon be referred to the special commissioner for hearing.
UNITED STATES V. ONE TRUNK CONTAINING FOURTEEN PIECES
(District Court, E. D. New York. July 11, 1907.) COURTS-FEDERAL COURTS—ADOPTION OF STATE PRACTICE-JUDGMENTS--VA
CATION OF DEFAULT JUDGMENT AFTER TERM.
An action by the United States for the forfeiture of smuggled goods is a statutory proceeding assimilated to an action in rem in admiralty, and Rev. St. § 914 [U. S. Comp. St. 1901, p. 683), providing for conformity to the state practice in civil causes other than equity or admiralty causes, does not apply to such a proceeding so as to abrogate the settled rule of the federal courts that a court has no power to set aside a default judgment after the term at which it was entered to permit a defense to be interposed, because such practice is authorized in the courts of the state.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, $ 931.
Conformity of practice in common-law actions to that of state, see notes to O'Connell v. Reed, 5 C. C. A. 594; Nederland Life Ins. Co. v. Hall, 27 O. C. A. 392.]
On Motion to Set Aside Judgment Entered on Default.
CHATFIELD, District Judge. On the 11th of January, 1906, acting under a search warrant issued by a United States Commissioner in this district, employés of the government seized a trunk, containing certain embroidery and other articles, upon the premises and within the possession of one George Bardwill, at the corner of Henry street and Atlantic avenue, in the borough of Brooklyn, New York City. The seizure was made on a charge that the contents of the trunk had been smuggled and imported into the United States without payment of the duty to which the goods and merchandise were subject.
The property was taken into custody by the United States marshal for the Eastern district of New York, under a monition issued out of this court under date of April 9, 1907, and a notice to claimants published, according to law, in the “Standard-Union” for 14 successive days, commencing April 10, 1907. The monition was issued upon the filing of an information by the United States attorney in said Eastern district of New York, in the office of the clerk of said court, and no claimant appearing upon the return day, viz., the 24th day of April, 1907, a decree was entered reciting the return of the marshal, the giving of notice, and the fact that no person appeared or interposed a claim to the trunk or its contents. This decree ordered a default against all persons who had not appeared and filed claims, and "further ordered, adjudged, and decreed that the said property, articles, etc., be, and the same hereby are, for the reasons and causes mentioned in the information herein, condemned as forfeited to the use of the United States.” The decree further provided for a sale upon 15 days' notice according to law, at a place specified in said decree. This
sale was had, and realized the sum of $1,800, which amount was paid by the United States marshal to the clerk of the court upon the 13th day of May, 1907. The decree declaring the goods forfeited was entered upon the 24th day of April, 1907, and a writ of venditioni exponas issued
upon that day. The proceeds of this sale are still in the registry of this court, and have been held because of an application made on behalf of George Bardwill, the person upon whose premises the goods were seized, to have his default in claiming the goods opened, in order that he might file a claim thereto, and for such other relief as might be just. This motion was made and argued at the May term of the court, held on the 31st day of May, 1907. The decree of forfeiture was entered at the April term of this court, and that term expired on April 30, 1907, and before any application with respect to said default had been brought to the notice of the court.
The applicant argues that the federal courts have given to a person in default his day in court, and afforded him relief from that default, even after the term had expired, during which the judgment had been entered. The petitioner claims that such relief can be given in cases falling within the old English practice by writs of error, “Coram vobis or audita querela,” and that similar relief, by the New York state practice, can be had in the state courts. Section 914 of the Revised Statutes [U. S. Comp. St. 1901, p. 683], requiring the practice in the United States courts, in cases other than equity and admiralty, to conform as near as may be, to the practice in like cases in the state courts, is citeal as authority for applying the rule under the New York Statutes. The English writ coram vobis was used to correct mistakes of fact or errors in process, which can be brought to the attention of the court in which they were committed by means of this writ, but cannot be relied upon where the error is in the judgment itself (Rolle's Abridgment, p. 749), or where the question relates to the power of the court and not to the mode of procedure. Bronson v. Schulten, 104 U. S. 416, 417, 26 L. Ed. 797, and cases there cited.
The writ of audita querela does not lie, where the party complaining has had a legal opportunity of defense, and has neglected it. This writ is a regular suit in equity, to which the parties may plead and take issue on the merits, and cannot, therefore, be sued against the United States. Avery v. United States, 79 U. S. 304, 20 L. Ed. 405. In that case the complainant had neglected to set up a sum of money as a set-off, which had been received by the United States prior to the bringing of an action by it against the petitioner, and it was there held that the court had no authority to open the final judgment, and that this judgment could be reviewed only by a writ of error. of a United States court over its own judgment is well set forth in Bronson v. Schulten, supra, and Phillips v. Negley, 117 U. S. 674, 6 Sup. Ct. 901, 29 L. Ed. 1013, and the following language from Bronson v. Schulten, as quoted in the case of Phillips v. Negley, is directly applicable:
"In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all the courts of the United States, and, if there be exceptions in the state courts, they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of the courts, how
ever 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,
* and, 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 which, by law, can review the decision."
In Sibbald v. United States, 37 U. S. 488, 9 L. Ed. 1167, the court said:
"No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes."
If an equitable defense or a good defense in law, which the defendant was prevented from availing himself of, by fraud or accident, unmixed with negligence of the defendant or his agents, exists, a bill in equity might afford relief. Hendrickson v. Hinckley, 58 U. S. 443, 15 L. Ed. 123, and other cases, cited in Phillips v. Negley, supra. In the case of United States v. Millinger (C. C.) 7 Fed. 849, a judgment entered by default in 1872 was opened in 1880; the amount of the judgment having been entered from an inadvertent omission by the plaintiff to allow credits to the defendant, which should have been deducted upon the assessment of damage. The applicant also cites the case of Brown v. Philadelphia, Wilmington & Baltimore R. Co. (C. C.) 9 Fed. 183, in which a default was opened, under the authority of section 914 of the Revised Statutes, requiring the practice in the United States courts, in cases other than equity and admiralty, to conform, as near as may be, to the practice in like cases in the state courts. In that case a statute of the state of Delaware was followed in opening a default.
The present case arises under a statutory provision for an action to enforce a forfeiture. The procedure is assimilated to that of an action in rem in admiralty, and it would seem that section 914 of the Revised Statutes of the United States would not apply; in so far as to work a modification of the general rules relating to the power of a United States Court over a judgment entered at a trial term, even if the action of forfeiture, created by statute, be a statutory action at law, and not one in equity or admiralty. Where the admiralty practice is followed, as in a case like the present, it does not seem that the practice may conform to that of the state courts sufficiently to create rights not recognized as within the powers of United States Courts, exclusive of the provisions of section 914 of the Revised Statutes. The applicant furnishes authorities under the laws of the state of New York showing the opening of defaults, after the expiration of the term at which judgment was entered. But, for the reasons above given, and under the decisions of the United States Supreme Court, the present application cannot be disposed of upon the authority of the New York state decisions. From the standpoint of the United States authorities, while the application to open the default would appeal to the discretion of the court, if it lay within its power to grant the petitioner relief, it does not seem that such discretion exists.