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In Odell v. Reynolds et al., 70 Fed. 656, 17 C. C. A. 317, the court, in discussing the practice of such entries nunc pro tunc, said:

"Sometimes the propriety of such action exists in cases where the correction may be made upon that which appears in the record itself, and is necessary to make it consistent and harmonious, one part with another. In other cases it is necessary, in the interests of justice, to act upon matters not appearing from the record; for example, things resting in the recollection of the judge, or evidence adduced aliunde. In the former case notice to the parties is not necessary. No new thing is brought upon the record.

There is nothing to litigate. No right is substantially affected.

If it is the recollection of the court, it is doubtful whether notice is required, for the reason that it is not open to contest. At all events, it would seem, upon the authorities, that corrections of the record made by the court upon its own recollection would not be collaterally assailable, though made without notice."

The order of the court amending the record in the case here under review shows that it was based upon the knowledge of the court of the facts. It was, therefore, a matter appealing to the conscience of the judge to have the record of his court contain the truth, the whole truth, and nothing but the truth. The requirement of notice to a party implies the right to appear and contest. A challenge to the court on an entry directed to be made, based upon its own knowledge, would present an unseemly contention before the presiding judge. How could such an issue be tried? The presiding judge says, “Within my own knowledge the case was tried on the petition, answer, and reply.” Would the defendant, in the face of the court's statement, be heard to say, “I deny it”? If the court is to try it out, is the judge to yield his own knowledge, his inward consciousness, to what some witness may say? The inevitable presumption that the court would follow its own knowledge and conscience is, in itself, a contradiction of such practice. At no time during this controversy has the plaintiff in error challenged the truth of the fact recited in the nunc pro tunc entry.

The next contention on behalf of the plaintiff in error is that when it, in the state court, failed to appear and prosecute its counterclaim, it was tantamount to a nonsuit, or withdrawal of the counterclaim, and the court should have so treated it. Therefore there should have been no trial of the issues raised by the answer and reply, and no judgment thereon. If this were conceded, would it follow that the action of the court in proceeding to trial and judgment on the whole issues presented by the pleadings rendered the judgment subject to collateral attack? The defendant therein having appeared and filed answer, it remained in court for all purposes connected with the litigation until such answer was withdrawn, which was never done. The court being one of general jurisdiction over the parties and the subject matter, it had the power to adjudicate. At the utmost, therefore, its action in not treating the failure of the defendant to urge its counterclaim as a constructive abandonment thereof was only an irregularity in a matter of procedure, a voidable error, and not a judgment coram non judice.

In Shaver & Son v. Shell, 24 Ark. 122–123, the justice of the peace, where the suit was on an open account and the plaintiff failed to appear, instead of entering a nonsuit against the plaintiff, as contemplated by the practice act, rendered judgment by default against the defendant. Of a collateral attack made on this judgment, English, C. J., said:

“The justice should have nonsuited the plaintiffs; and it was an error for him to render judgment by default against the defendant, which she could have corrected by appeal; but, failing to appeal, the judgment became final. The justice having jurisdiction of the subject-matter of the suit, by service of the process, which affirmatively appears, the judgment could not be regarded as null and void, when presented to the circuit court collaterally, on account of the error of the justice in rendering it without evidence"-citing Hill v. Steel, 17 Ark. 440; Alston, Ex parte, Id. 580.

Such a proceeding was merely erroneous, correctable by writ of error. Patting v. Spring Valley Coal Co., 98 Fed. 811, 39 C. C. A. 308. It is not subject to coilateral attack. Dowell v. Applegate, 152 U. S. 339, 340, 14 Sup. Ct. 611, 38 L. Ed. 463. Freeman on Judgments, p. 252, $ 135, says

"Jurisdiction being obtained over the person and the subject-matter, no error or irregularity in its exercise can make a judgment void."

The defendant having left its answer on file, the plaintiff therein could not have moved to strike it from the files, nor could the court disregard it; and this for the palpable reason that the answer contained something more than a counterclaim. It opens with the statement: “Comes the defendant, and for answer and by way of counterclaim says.” It then proceeds to state that the plaintiff contracted to sell to the defendant a kiln, containing about 500,000 brick, more or less, and to ship the same to Monroe, La., at the rate of six cars a day; that it had information of the use to which the defendant was to put the brick, and that the plaintiff, therefore, agreed to furnish the defendant a particular kind of brick; that the brick sued for by plaintiff were shipped "in pursuance of said contract;

that it afterwards failed and refused to carry out its said contract by delivering the brick, although the delivery thereof was continually demanded, but sold said brick to other parties, and utterly failed and refused to carry out its contract.”

So, while it is true that on the plaintiff's alleged breaches of the contract the defendant laid the predicate of its counterclaim, the facts alleged stated a complete defense to the plaintiff's right of recovery. As the account sued on was for brick delivered under the contract, the contract being an entirety, if the plaintiff itself, as alleged in the answer, broke the contract, it was not entitled to recover thereon, on the ground that he who commits the first substantial breach of a contract cannot maintain action against the other party for a subsequent default in the performance thereof. Cattle Company v Martindale, 63 Fed. 84–89, 11 C. C. A. 33–38; Guarantee Co. v. Mechanics', etc., Co., 183 U. S. 402, 22 Sup. Ct. 124. 46 L. Ed. 253; Imperial Fire Insurance Company v. Coos Co., 151 U. S. 463–467, 14 Sup. Ct. 379, 38 L. Ed. 231; Hubbard v. Association, 100 Fed. 719, 40 C. C. A. 665; National Surety Company v. Long, 125 Fed. 887, 60 C. C. A. 623. If the Bridge Company preferred to try its counterclaim in the federal court, the proper course, and the only course open to it, was to withdraw its answer in the

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state court, relieving the plaintiff of the burden of introducing any evidence to support its action. As said in Eastmure v. Laws, 7 Dowling, 435, 436, by Bosanquet, J.:

“I have always understood that when issue is joined between two parties in a cause, on a second action on the same matter, the verdict, judgment, and Issue in the first suit may be pleaded by way of estoppel, and are conclusive.

That is the case here, and there is averment that the sum which was the subject of set-off in the first action is the same which is now in contra versy."

After stating that the defendant was not bound to plead the setoff, he added :

“It is for the defendant, therefore, to say whether he will defend the action without pleading the set-off, and, if he pleads, he must suffer the consequences of leaving it on record. Here he has abandoned the opportunity of taking the plea off the record, on payment of all costs, which he might have obtained on going to the judge at chambers, up to the very last moment before the trial was called on. But he puts the plaintiff to the trouble of coming down to contest the plea set up."

By leaving its answer on file in the case, judgment by default against the defendant could not go. It placed the plaintiff under the necessity of going to trial on the issues, and adducing proof to show what the contract was and that it had not violated it. That particular fact, therefore, was included in the matter adjudged. The very foundation of the suit in the federal court is that the Brick Company did not observe and keep its contract, but broke the same, to the damage of the Bridge Company in the sum of $3,000. As under the Code of Arkansas no reply is required, except as to counterclaims and the like set up in the answer, the judgment pleaded as an estoppel, with or without the amendment made by the state court, concluded the controversy as to who had broken or kept the contract, because it was directly involved in the issues made by the defendant's answer. Durham v. Bower, 77 N. Y. 80, 33 Am. Rep. 570; Patrick v. Schaffer, 94 N. Y. 423-507; Cromwell v. Sac County, 94 U. S. 353, 24 L. Ed. 195; Southern Minn. Ry. Co. v. St. Paul, etc., Ry. Co., 55 Fed. 695, 196, 5 C. C. A. 249.

It results that the judgment of the Circuit Court must be affirmed.

CRIM et al. v. WOODFORD.
(Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)

No. 522. 1. BANKRUPTCY-APPEAL JOINDER OF APPELLANTS HAVING SEPARATE INTER

ESTS.

Where but a single order or judgment is made by a district court in a bankruptcy proceeding which determines a question affecting alike differ. ent claimants, they may unite in an appeal therefrom, although their interests are several and distinct.

[Ed. Note.-Appeal and review in bankruptcy cases, see note to In re

Eggert, 43 C. C. A. 9.] 2. SAME-PETITION FOR REVIEW OF REFEREE'S ORDER-TIME FOR FILING.

There is no provision of the bankruptcy act or of the general orders in bankruptcy fixing the time within which a petition for review of an order

of a referee must be filed, and, in the absence of a rule of court on the subject, the time within which such a petition may be entertained is discretionary, subject only to the limitation that it must be filed within a reasonable time in view of the general purpose of the act to expedite the

proceedings. 3. SAME-REVIEW OF REFEREE'S ORDER-FAILURE TO SUMMARIZE EVIDENCE.

The provision of general orders in bankruptcy No. 27 (89 Fed. xi, 18 Sup. Ct. viii), requiring a referee on the filing of a petition for review of an order made by him to certify a summary of the evidence relating thereto to the judge, should be observed; but where it appears from the referee's certificate that, instead of making a summary, he has returned all the evidence taken, and the matter has been determined by the judge without any motion having been made to require the evidence to be summarized, the proceeding for review will not be invalidated, where it involves substantial matters, because the rule was not observed by the

referee, 4. SAME-LIENS_VALIDITY.

Liens given by an insolvent within four months prior to his bankruptcy to secure loans made him at the time, which were valid under the laws of the state, and were accepted by the lenders in good faith and without knowledge of the borrower's insolvency, or good cause to believe bim insolvent, are protected by Bankr. Act July 1, 1898, c. 541, $ 670, 30 Stat. 564 (U. S. Comp. St. 1901, p. 3449), and the fact alone that a lender knew that the borrower had overdrawn his bank account did not charge him with knowledge of insolvency where the borrower was a man of excellent reputation, and engaged in large contracts, supposed to be profitable, and requiring the use of considerable sums of money.

Appeal from the District Court of the United States for the Northern District of West Virginia, at Clarksburg, in Bankruptcy.

Melville Peck and John Bassell (Fred. O. Blue and W. T. Ice, on the briefs), for appellants.

J. Hop. Woods and W. T. George, for appellee.

Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge.

BRAWLEY, District Judge. This is an appeal from the District Court of the United States for the Northern District of West Virginia, in bankruptcy, and a correct understanding of the questions involved can best be had by printing in full the judgment entered October 8, 1903. It is as follows:

"In the Matter of J. M. Proudfoot, Bankrupt. In Bankruptcy. "An application having been made heretofore to this court by J. N. B. Crim, S. A. Moore, J. F. Manown, J. M. Carlin, and others to review the decree made by W. Frank Stout, referee herein, on the 5th day of June, 1902, wherein said referee fixed the liens and priorities upon the estate of said J. M. Proudfoot, bankrupt, the same came on this day to be heard upon the papers and certificates of said referee, certifying the said questions presented for review, and the court heard the argument of counsel. Upon consideration whereof, it appearing to the court that no summary of the evidence taken in said matter, as provided for by rule 27 of the Supreme Court of the United States [89 Fed. xi, 18 Sup. Ct. viii), governing proceedings in matters of bankruptcy, was made by said referee, and nothing appearing in the said record as presented to show that there was any error in the said findings of said referee, it is therefore adjudged, ordered, and decreed that the findings of the said referee made on the said 5th day of June, 1902, be, and the same are hereby, confirmed, and the said referee is directed to proceed to disburse the funds belonging to the said bankrupt's estate in accordance with said findings and the laws governing bankrupt proceedings."

There is a motion to dismiss the appeal because the interest of the petitioners Crim, Moore, and Manown are not joint, but are several and distinct, and therefore it is claimed they cannot collectively join in the appeal. It is true that each of the appellants named has a separate interest, but, as the court below entered but one judgment and allowed the joint appeal, there appears to be no good reason why they should not all be heard together, as the main question determined by the court below and for consideration here is common to all the appellants, and separate appeals would have served no good purpose, and involved additional and unnecessary expense. The motion to dismiss the appeal on that ground therefore is refused.

The second ground is, “because the petitioners Moore and Manown did not file a petition before the referee for a review within the time prescribed by law.” The order of the referee adjudging and decreeing that the liens claimed by the appellants should be set aside was entered June 5, 1902. Crim's petition for review was filed June 9, 1902, Moore's petition June 24, 1902, and Manown's July 1, 1902. It does not appear from the record that any objection was made in the court below to the hearing of the petitions on the ground that they were not filed in due time, but it is now claimed that, inasmuch as Moore and Manown did not file their petitions within 10 days, they had no right to be heard. There is nothing in the bankrupt act nor in the general orders which fixes a time within which petitions for review of the referee's decisions must be filed. Section 25 (Act July 1, 1898, c. 541, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3132]) requires that in the cases therein enumerated appeals to the Circuit Courts of Appeal shall be taken within 10 days after the judgment appealed from has been rendered. There is no apparent reason why a longer time than this should be allowed for the filing of a petition for a review of the order of a referee, for in nearly all of the provisions of the bankruptcy act which require notices the time limit of 10 days is adopted, and in some jurisdictions there is a rule to that effect; but it does not appear that there is any such rule in the district from which this appeal comes. There being no time limit fixed by the statute or by rule, it seems to be left to the discretion of the judge, and the practice, so far as adjudicated cases which we have examined enlighten us on this point, is that the petition may be filed within a reasonable time. The Circuit Court of Appeals of the First Circuit in Re Worcester County, 4 Am. Bankr. Rep. 501, 102 Fed. 808, 42 C. C. A. 637, held as follows:

“The original decree was entered, as we have already said, on July 21, 1899, and petition to review was filed in this court on December 7, 1899; that is, within six months. The statute fixes no time within which a petition of this nature must be filed, so that unless some time is fixed by a rule, as was the case in Re Hien, 166 U. S. 432, 17 Sup. Ct. 624, 41 L. Ed. 1066, or by following some analogous provision of statute, petitions of this character can be filed with reference to any proceeding in bankruptcy so long as the decree is executory or the case has not been closed. The bankruptcy act of 1867 (Act March 2, 1867, c. 176, 14 Stat, 517) in like manner omitted any limitation on the exercise of the revisory power of the Circuit Court, so that in this circuit

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