It has been held that an order staying plaintiff's proceedings till he pays costs of a former suit is res adjudicata upon a subsequent motion, and is so far final that it cannot be set aside or modified at a subsequent term.15

The writ of error coram nobis was allowed, to bring before the same court in which the error was committed some matter of fact which had escaped attention, and which was material in the proceeding. It was limited generally to the facts that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert, or the like; or to error in the process through default of the clerk. 16 In criminal cases which could not be reviewed by another court this writ may issue to review any error of fact or law.17

In practice the same end is now generally obtained by motion, supported, if the case require it, by affidavits.18 So far did the latter mode supersede the former in the English practice, that Blackstone does not even notice this writ in his description of remedies.

A judgment may be amended on motion subsequent to the time of its entry for the purpose of correcting an error in computation, which appears upon the record. 19

It has been held that a court has power at any time to set aside a judgment which is absolutely void, not merely voidable.20 For example, a judgment entered in vacation without statutory authority,21 a judgment entered by a clerk without statutory authority, 22 a judgment in a case where the court has no jurisdiction because of a lack of difference of citizenship,23

15 Buckles v. Chicago, M. & St. Paul Ry. Co., 53 Fed. 566.

161 Roll Abr. 746, 747, 749. 17 Tidd's Practice, 9th ed., 1136, 1137; Bronson v. Schulten, 104 U. S. 410, 416, 26 L. ed. 797, 799, per Miller, J.; Phillips v. Negley, 117 U. S. 665, 29 L. ed. 1013; U. S. v. Mayer, 235 U. S. 55. See Lincoln Nat. Bank v. Perry, 66 Fed. 887.

18 Pickett's Heirs v. Legerwood, 7 Pet. 144, 148, 8 L. ed. 638, 639.

19 A. J. Woodruff & Co. v. U. S., 154 Fed. 861. See supra, § 444.

20 U. S. v. Wallace, 46 Fed. 569, 570. See supra, § 444.

21 Abraham v. Levy, C. C. A., 72 Fed. 124. Cf. supra, § 444.

22 Rehfield v. Baltimore & O. R. Co., C. C. A., 187 Fed. 810.

23 Politz v. Wabash R. Co., 180 Fed. 950, where the Circuit Court of Appeals has subsequently held that a motion to remand should have been granted.

a judgment based upon a statute which is unconstitutional.24 Where a sentence has been made in excess of the power granted by statute, it may be amended nunc pro tunc at a subSequent term by striking out so much of the same as exceeds the court's authority.25 It has been held that an application for the remission of a penalty is not a motion to vacate a judg ment and may be granted after the term at which the judg ment was entered.26 A judgment 27 or order may be entered nunc pro tunc to embody a decision made at a previous term of the court even in a criminal case; 28 to correct a statement that a dismissal was "without right to further prosecute" so that it shall read "without right to further prosecute for adjudication of bankruptcy under the national bankruptcy law for any of the causes alleged in the petition herein;' 29 in a civil case to make special findings previously omitted, conformably to the opinion filed at the judgment term,30 and to correct the record, so as to show upon what pleadings 31 or other papers 32 the case was in fact submitted. But not to correct findings made under a mistake 33 nor after a writ of error has been decided to insert in the record new findings some of which were unavoidably and others accidentally omitted.34 In a proper case

24 U. S. v. Rothstein, C. C. A., 187 Fed. 268.

25 Ex parte Harlan, 180 Fed. 119. See infra, § 532.

26 U. S. v. Jenkins, C. C. A., 176 Fed. 672.

27 U. S. v. Chicago & A. R. Co., C. C. A., 250 Fed. 101.

28 Re Wight, 134 U. S. 136, 33 L. ed. 865; Supervisors v. Durant, 9 Wall. 736, 19 L. ed. 813; Ætna Ins. Co. v. Boon, 95 U. S. 117, 24 L. ed. 395. See Hickman v. Fort Scott, 141 U. S. 415, 35 L. ed. 775.

29 Bernard v. Abel, C. C. A., 156 Fed. 649.

30 Etna Ins. Co. v. Boon, 95 U. S. 117, 24 L. ed. 395. See Sabine Hardwood Co. v. West Lumber Co., 238 Fed. 611; U. S. D. C., S. D. N. Y., Rule 5, extends the term

for the purposes of such motions until three calendar months, beginning on the first Tuesday of the month in which the verdict is rendered or judgment or decree entered. Brown v. U. S., C. C. A., 196 Fed. 351.

31 Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., 126 Fed. 552.

32 Hays v. Wagner, C. C. A., 150 Fed. 533. Such as the filing and certification as part of the record of the stenographer's minutes, when a State statute provides that they may be made part of the record. Cornette v. Baltimore & O. R. Co., C. C. A., 195 Fed. 59.

33 Mellon v. St. Louis Union Tr. Co., C. C. A., 240 Fed. 359.

34 Hickman V. Fort Scott, 141 U. S. 415, 35 L. ed. 775.

a correction or an omission may be supplemented nunc pro tunc, pending a writ of error.3

35

The failure of an alien to file a declaration of his intent to become a citizen cannot be cured by an amendment nunc pro tunc.36

Where, during the term, a new trial had been granted; it was held that its incidental effect was to vacate a previous judgment, and that the court at a subsequent term, by an order nunc pro tunc, might state such vacation.37 When the facts. are recent, it seems that an order, which is founded upon matters within the knowledge of the court, may be entered nunc pro tunc, without notice to the party thereby affected.38 It has been held that, when there is no record of any sort, an order nunc pro tunc cannot be made.39

The object of an entry nunc pro tunc is, not to make an order now for then, but to enter now for then an order previously made.40 When the delay in making the order was due to the failure of the attorney to draft it, and not to the fault or inadvertence of the judge or the clerk; it cannot be entered nunc pro tunc so as to affect intervening rights.41

The fact that a judge had, in chambers, expressed a willingness to make a desired order extending time, when no such order was actually made or directed in open court, does not warrant the entry of such an order nunc pro tunc at a succeeding term.42 An order nunc pro tunc has no effect upon the statute of limitations; nor can it relate back so as to make a person guilty of contempt for an act done before it was entered.44 Where a case has been tried and is under advisement

43

35 U. S. v. Chicago & A. R. Co., C. C. A., 250 Fed. 101.

36 Re Stack, 200 Fed. 330.

37 Evans v. Freeman, 140 Fed. 419.

38 Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., 126 Fed. 552. But see Wetmore v. Karrick, 205 U. S. 141, 51 L. ed. 745.

39 Gagnon v. U. S., 193 U. S. 451, 48 L. ed. 745. For a case holding that the clerk cannot enter judgment nunc pro tunc see Pressed

Steel Car Co. v. Steel Car Forge
Co., C. C. A., 149 Fed. 182.

40 Klein v. Southern Pac. Co., 140 Fed. 213; Cuebas v. Cuebas, 223' U. S. 376, 56 L. ed. 476.

41 Re Finks, C. C. A., 224 Fed. 92.

42 Klein V. Southern Pac. Co., 140 Fed. 213.

43 Fewlass v. Keesham, C. C. A., 88 Fed. 573, 576.

44 Ex parte Buskirk, C. C. A., 72 Fed. 14.

at the time of the death of a party, a decree may be entered by the court nunc pro tunc as of a date before his death; 45 but not when the court had no jurisdiction when he died.46

An order amending or setting aside a judgment at common law which is beyond the jurisdiction of the court may be reviewed by writ of error,47 or in a proper case by a mandamus.48 The power of a court of error to review such an order which although erroneous was not beyond the jurisdiction of the court below is doubtful.49

Where neither the record, nor a bill of exceptions, showed either that a defendant excepted to an order, setting aside a judgment at the same term and amending a declaration, which provicled that his plea stand to the declaration as amended, or any request by him to file a further plea; it was held that he could not object thereto upon the writ of error.50

§ 482. Condemnation proceedings. The Act of August 1, 1888, provides that "in every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses, he shall be, and hereby is, authorized to acquire the same for the United States by condemnation under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so, and the United States Circuit or District Court of the district wherein such real estate is located shall have jurisdiction of proceedings for such condemnation, and it shall be the duty of the Attorney-General of the United States, upon every application of the Secretary of the Treasury, under this act, or such other officer, to cause proceedings to be commenced for condemnation, within thirty days from the receipt of the application the Department of Justice."

at

45 Mitchell v. Overman, 103 U. S. 62, 26 L. ed. 369; §§ 216, 217, supra. Lenoir Car Works v. Trinkle, C. C. A., 228 Fed. 634.

46 Cuebas v. Cuebas, 223 U. S. 376, 389, 56 L. ed. 476, 480.

47 Re Bennett, C. C. A., 215 Fed. 673; S. M. Hamilton Coal Coke v. Watts, C. C. A., 232 Fed. 832.

"The practice, pleadings,

48 U. S. v. Mayer, 235 U. S. 55. See supra, § 457.

49 Re Rochester Sanitarium & Bath Co., C. C. A., 222 Fed. 22.

50 G. Holloway & Bro. v. WhiteDunham Shoe Co., C. C. A., 10 L. R.A. (N. S.) 704, 151 Fed. 216.

forms, and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any rule of the court to the contrary notwithstanding."1 This act is authorized by the Constitution. This statute confers no general authority for public officers to acquire land. It only gives them power to institute proceedings for condemnation, where the acquirement of the land is otherwise authorized.3

By the act of April 24, 1890, the Secretary of War has the right to institute proceedings for the "condemnation of any land, right of way, or material needed to enable him to maintain, operate, or prosecute works for the improvement of rivers and harbors, for which provision has been made by law." 4

By the act of August 8, 1890, "the Secretary of War may cause proceedings to be instituted, in the name of the United States, in any court having jurisdiction of such proceedings, for the acquirement, by condemnation, of any land, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications and coast defenses, such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the States wherein the proceedings may be instituted: Provided, That when the owner of such land or rights pertaining thereto shall fix a price for the same, which, in the opinion of the Secretary of War, shall be reasonable, he may purchase the same at such price without further delay: Provided further, That the Secretary of

§ 482. 1 Ch. 728, § 1, 25 St. at L. 357, Comp. St., § 6909. The statutory authority for the purchase of land for the assembling, grazing and training of horses purchased for the mounted service," Act of Aug. 1, 1888, ch. 728, 25 St. at L. 357, Comp. St. 1901, p. 2516; empowers the Attorney General upon the application of the proper officer to institute proceedings to condemn the same, U. S. v. Beaty, 198 Fed. 284.

2 Re Rugheimer, 36 Fed. 369; Kohl v. U. S., 91 U. S. 367, 23 L. ed. 449; Boom Co. v. Patterson, 98 U. S. 403, 406, 25 L. ed. 206, 207; U. S. v. Jones, 109 U. S. 513, 27 L. ed. 1015.

3 U. S. v. Certain Lands in the Town of Narragansett, R. I., 145 Fed. 654.

425 St. at L., 94; U. S. v. Certain Lands in the Town of Narragansett, R. I., 145 Fed. 654.

A