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the term might occur very soon, or quite a long time, after the entry of a judgment. In order to make the practice uniform, Rule 60-B provides: "On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding. Thus there has been substituted for the term rule a definite time limitation within which a district court may correct or modify its judgments. But the salutary rule as to finality is retained and, after the expiration of six months, the party must apply, as heretofore, by bill of review,-now designated a civil action-to obtain relief from a judgment which itself is final so far as any further steps in the original action are concerned.

The term rule applies with equal force to an appellate court. Over the whole course of its history, this court has uniformly held that it was without power, after the going down of the mandate, and the expiration of the term, to rehear a case or to modify its decision on the merits. And this is equally true of the circuit courts of appeal.'

6

Hudson v. Guestier, 7 Cr. 1; Jackson v. Ashton, 10 Pet. 480; Sibbald v. United States, supra, 492; Washington Bridge Co. v. Stewart, supra; Brooks v. Railroad Co., 102 U. S. 107; Barney v. Friedman, 107 U. S. 629; Hickman v. Fort Scott, supra, 419; Bushnell v. Crooke Mining Co., 150 U. S. 82.

"Ex parte National Park Bank, 256 U. S. 131. "That court was powerless to modify the decree after the expiration of the term at which it was entered. If the omission in the decree had been adequately called to the court's attention during the term it would doubt

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ROBERTS, J., dissenting.

The court below, unless we are to overthrow a centuryand-a-half of precedents, lacks power now to revise its judgment and lacks power also to send its process to the District Court and call up for review the judgment entered on its mandate twelve years ago. No such power is inherent in an appellate court; none such is conferred by any statute.

2. The Circuit Court of Appeals is without authority either to try the issues posed by the petition and answer on the affidavits on file, or, to do as the dissenting judge below suggests, hold a full-dress trial.

The federal courts have only such powers as are expressly conferred on them. Certain original jurisdiction is vested in this court by the Constitution. Its powers as an appellate court are those only which are given by statute.

The circuit courts of appeal are creatures of statute. No original jurisdiction has been conferred on them. They exercise only such appellate functions as Congress has granted. The grant is plain. "The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions. . . in the district courts Nowhere is there any grant of jurisdiction to try cases, to

99 10

less have corrected the error complained of; or relief might have been sought in this court by a petition for a writ of certiorari. The bank failed to avail itself of remedies open to it." (p. 133.) The circuit courts of appeal have uniformly observed the rule thus announced. Hart v. Wiltsee, 25 F. 2d 863; Nachod v. Engineering & Research Corp., 108 F.2d 594; Montgomery v. Realty Acceptance Corp., 51 F. 2d 642; Foster Bros. Mfg. Co. v. Labor Board, 90 F. 2d 948; Wichita Royalty Co. v. City National Bank, 97 F. 2d 249; Hawkins v. Cleveland, C., C. & St. L. Ry. Co., 99 F. 322; Walsh Construction Co. v. U. S. Guarantee Co., 76 F. 2d 240; Waskey v. Hammer, 179 F. 273. Sibbald v. United States, supra, 492; Roemer v. Simon, 91 U. S. 149; In re Sanford Fork & Tool Co., 160 U. S. 247.

•Ex parte Bollman, 4 Cr. 75, 93.

10 Judicial Code § 128 as amended; 28 U. S. C. 225.

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enter judgments, or to issue executions or other final process.

courts created by statute must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may be clearly denied to them." "1

This court has never departed from the view that circuit courts of appeal are statutory courts having no original jurisdiction but only appellate jurisdiction.12

Neither this court 13 nor a circuit court 14 of appeals may hear new evidence in a cause appealable from a lower court. No suggestion seems ever before to have been made that they may constitute themselves trial courts, embark on the trial of what is essentially an independent cause and enter a judgment of first instance on the facts and the law. But this is what the opinion sanctions.

3. The temptation might be strong to break new ground in this case if Hazel were otherwise remediless. Such is

11 Cary v. Curtis, 3 How. 236, 245. See Sheldon v. Sill, 8 How. 441, 449; Kentucky v. Powers, 201 U. S. 1, 24.

12 Whitney v. Dick, 202 U. S. 132, 137; United States v. Mayer, supra, 65; Realty Acceptance Corp. v. Montgomery, supra, 549.

13 Russell v. Southard, 12 How. 139, 158, 159; United States v. Knight's Adm'r, 1 Black 488; Roemer v. Simon, supra. In the Russell case Chief Justice Taney said: "It is very clear that affidavits of newly-discovered testimony cannot be received for such a purpose. This court must affirm or reverse upon the case as it appears in the record. We cannot look out of it, for testimony to influence the judgment of this court sitting, as an appellate tribunal. And, according to the practice of the court of chancery from its earliest history to the present time, no paper not before the court below can be read on the hearing of an appeal. Eden v. Earl Bute, 1 Bro. Par. Cas. 465; 3 Bro. Par. Cas. 546; Studwell v. Palmer, 5 Paige, 166.

"Indeed, if the established chancery practice had been otherwise, the act of Congress of March 3d, 1803, expressly prohibits the introduction of new evidence, in this court, on the hearing of an appeal from a circuit court, except in admiralty and prize causes."

14 Realty Acceptance Corp. v. Montgomery, supra, 550, 551.

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not the fact. The reports abound in decisions pointing the way to relief if, in equity, Hazel is entitled to any.

Since Lord Bacon's day a decree in equity may be reversed or revised for error of law,15 for new matter subsequently occurring, or for after-discovered evidence. And this head of equity jurisdiction has been exercised by the federal courts from the foundation of the nation.18 Such a bill is an original bill in the nature of a bill of review. Equity also, on original bills, exercises a like jurisdiction to prevent unconscionable retention or enforcement of a judgment at law procured by fraud, or mistake unmixed with negligence attributable to the losing party, or rendered because he was precluded from making a defense which he had. Such a bill may be filed in the federal court which rendered the judgment or in a federal court other than the court, federal or state, which rendered it.17

15 A bill filed to correct error of law apparent on the record is called a strict bill of review and some rules as to time are peculiarly applicable to such bills. See Whiting v. Bank of United States, 13 Pet. 6, 13, 14, 15; Shelton v. Van Kleeck, 106 U. S. 532; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207. Street, Federal Equity Practice, § 2129 et seq. With this type of bill we are not here concerned.

16 Ocean Ins. Co. v. Fields, 2 Story 59; Whiting v. Bank of United States, supra; Southard v. Russell, 16 How. 547; Minnesota Co. v. St. Paul Co., 2 Wall. 609; Purcell v. Miner, 4 Wall. 519; Rubber Co. v. Goodyear, 9 Wall. 805; Easley v. Kellom, 14 Wall. 279; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Craig v. Smith, 100 U. S. 226; Shelton v. Van Kleeck, supra; Pacific Railroad v. Missouri Pacific Ry. Co., 111 U. S. 505; Central Trust Co. v. Grant Locomotive Works, supra; Boone County v. Burlington & M. R. R. Co., 139 U. S. 684; Hopkins v. Hebard, 235 U. S. 287; Scotten v. Littlefield, 235 U. S. 407; National Brake & Electric Co. v. Christensen, 254 U. S. 425; Simmons Co. v. Grier Bros. Co., 258 U. S. 82; Jackson v. Irving Trust Co., 311 U. S. 494, 499.

17 Logan v. Patrick, 5 Cr. 288; Marine Ins. Co. v. Hodgson, 7 Cr. 332; Dunn v. Clarke, 8 Pet. 1; Truly v. Wanzer, 5 How. 141; Creath's Adm'r v. Sims, 5 How. 192; Humphreys v. Leggett, 9 How. 297; Walker v. Robbins, 14 How. 584; Hendrickson v. Hinckley, 17 How.

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Whether the suit concerns a decree in equity or a judgment at law, it is for relief granted by equity against an unjust and inequitable result, and is subject to all the customary doctrines governing the award of equitable relief.

New proof to justify a bill of review must be such as has come to light after judgment and such as could not have been obtained when the judgment was entered. The proffered evidence must not only have been unknown prior to judgment, but must be such as could not have been discovered by the exercise of reasonable diligence in time to permit its use in the trial. Unreasonable delay, or lack of diligence in timely searching for the evidence, is fatal to the right of a bill of review, and a party may not elect to forego inquiry and let the cause go to judgment in the hope of a favorable result and then change his position and attempt, by means of a bill of review, to get the benefit of evidence he neglected to produce. These principles are established by many of the cases cited in notes 16 and 17, and specific citation is unnecessary. The principles are well settled. And, in this class of cases as in others, although equity does not condone wrongdoing, it will not extend its aid to a wrongdoer; in

443; Leggett v. Humphreys, 21 How. 66; Gue v. Tide Water Canal Co., 24 How. 257; Freeman v. Howe, 24 How. 450; Kibbe v. Benson, 17 Wall. 624; Crim v. Handley, 94 U. S. 652; Brown v. County of Buena Vista, 95 U. S. 157; United States v. Throckmorton, 98 U. S. 61; Bronson v. Schulten, 104 U. S. 410; Embry v. Palmer, 107 U. S. 3; White v. Crow, 110 U. S. 183; Krippendorf v. Hyde, 110 U. S. 276; Johnson v. Waters, 111 U. S. 640; Richards v. Mackall, 124 U. S. 183; Arrowsmith v. Gleason, 129 U. S. 86; Knox County v. Harshman, 133 U. S. 152; Marshall v. Holmes, 141 U. S. 589; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596; Robb v. Vos, 155 U. S. 13; Howard v. De Cordova, 177 U. S. 609; United States v. Beebe, 180 U. S. 343; Pickford v. Talbott, 225 U. S. 651; Simon v. Southern Ry. Co., 236 U. S. 115; Wells Fargo & Co. v. Taylor, 254 U. S. 175.