(dissenting).
I am of the opinion (1) that the allegations of fact in the complaint and the evidence presented at the hearing do not satisfy the statutory conditions for “remission of penalty of recognizance”; and (2) that the authority of the District Court to remit the penalty of the recognizance does not include the power to annul and vacate the judgment in the scire facias proceedings after the term of court at which the judgment was entered.
This Court in United States v. Capua et al., 7 Cir., 94 F.2d 292, 294, made the following statement respecting the remission statute: “Under this statute, before the court may grant relief, three conditions must be present. First, there must have been no willful default of the principal; second, it must be possible that a trial can he had, notwithstanding the default; and, third, it must be shown that public justice does not require that the penalty be enforced.”
The allegations of the complaint, and the evidence introduced, disclose that the showing of “no wilful default of the party” rested entirely upon the fact that defendant, Libichian, was without information that his cause “was set for appearance or trial at any time * * I do not believe that such a showing is sufficient. Defendant, Libichian, was required by law to know the day for appearance or trial and his sureties were bound under the law to have the defendant in court when his presence should be required. Something more than the personal neglect of his duty under the bond must be the influence which prevents defendant’s appearance in order to render his default “not wilful.”
Under the circumstances presented by the record the second condition was not met. This point involves the effect of an order of nolle prosequi in the principal case which was entered on the government’s motion March 16, 1934. The order was predicated on the decision of the Supreme Court in the case of United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510, which decision held that the repeal of the 18th Amendment, as of December 5, 1933, took away the power of the Federal Government to continue or to initiate prosecutions under the National Prohibition Act, 41 Stat. 305. But the bond involved in this proceeding was defaulted on November 10, 1932; a writ of scire facias had issued on December 19, 1932, and was served personally on all of the defendants on January 17, 1933, except Libichian, who could not be found*. None of the defendants made appearance or filed an answer to the writ of scire facias. On March 26, 1936, final judgment was entered against the four sureties who had been personally served.
It is clear that a trial cannot be had in the cause now and could not have been had at any time after repeal of the 18th Amendment on December 5, 1933.
The order of nolle prosequi was not a voluntary act of the appellant based upon any fact related to the prosecution of the cause. I assume that if the obligee of the bond, the United States Government, voluntarily had dismissed the suit and thereby, without fault of the defendant, had made it impossible to have the trial, the United States Government could not thereafter insist upon an enforcement of the penalty *374of the bond. There is nothing in the record from which it can be inferred that the trial would not have been had prior to December 5, 1933, if the defendant had not defaulted. It would seem to be necessary for the defendants, who are seeking to be released from the penalty of the bond, to show that apart from the default of Libichian, the trial could not have been had prior to the repeal of the 18th Amendment.
But even if appellees had been able to meet the conditions of the Remission statute, there remains the further question of the power of the District Court to annul the final judgment in the scire facias proceeding which had been rendered in favor of the United States and against the sureties who had been served personally. The Circuit Court of Appeals for the Third Circuit in Sun Indemnity Co. of New York v. United States, 3 Cir., 91 F.2d 120, 121, stated that a judgment on a writ of scire facias for the penalty of a bond is “in the position of any other rendered in a term which has now expired.” And the Court further stated that “it is well settled that in such cases a District Court is without jurisdiction to open or vacate a judgment.” The Supreme Court stated in United States v. Mack, 295 U.S. 480, 488, 55 S.Ct. 813, 817, 79 L.Ed. 1559, that “if the- condition of the bail bond is broken by the failure of the principal to appear, the sureties become ' the absolute debtors of the United States for the amount of'the penalty.” It would' se'em to follow, necessarily, that a judgment of the United States for the amount of the penalty against “the absolute debtors of the United States” would be in the strictest sense a money judgment and that the legal consequences of such a' judgment would be the same as the legal consequences of any money judgment.
The Remission statute represents a legislative restriction upon the power of courts to relieve defaulting defendants from the penalty of the bond which has been breached. I agree that the power of the court to relieve from the penalty of a forfeiture is not limited to the term at which the default occurs, but I cannot agree that the language of the statute which authorizes remission of the penalty after breach-reasonably can be construed to authorize the District Court to vacate a money judgment for the penalty after the expiration of the term at which the judgment was entered. The fact that the practical result of vacating the judgment is to relieve from-the penalty is no sound legal justification for disregarding the rules of law which control judgments. There are many situations in which a trial court in the exercise-of its discretion may set aside defaults-or orders, which, have not ripened into final judgments, long after the term at which the default has been taken or the orders-made. But when a final judgment has been entered, it does not follow that that judgment may be vacated at some subsequent term and the default set aside, or the order-vacated, even though the practical result would be the same as if the court had set aside the.default or vacated the order before final judgment. No matter what language we use to describe the result, the fact is that a trial court cannot remit in whole or in part the penalty of a bond after judgment therefor without judicially annulling the judgment.
The Supreme Court consistently has adhered to the rule that after term the final judgments and decrees of the trial co'urt have passed beyond its control, “unless steps-be taken during that term, by motion or otherwise, to set aside, modify, or correct them; * * *.” Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797. No sound legal reason has been suggésted why this rule should be departed from in the case of a judgment in a suit for the penalty of a bond, even though the penalty might have been remitted upon a proper showing prior to the rendition of judgment
. I feel that nothing less than a definite-statement of legislative intention would justify our construing the language of a statute to confer upon a District Court discretion to vacate judgments, in any class of cases, during an indefinite period of time after the close of the term at which the judgments have been rendered.