Full opinion text
MEMORANDUM VAN PELT, District Judge, and DELEHANT, Senior District Judge, joining in all rulings now announced. The plaintiff’s correct post-office address, place of residence and citizenship (with respect to the state thereof) are uncertain. At all times when the cases numbered 01322, 01682 and 01784 were severally instituted he resided in Nebraska, and either at Howe, or at Bridgeport, therein, and was a citizen of Nebraska. Later, he has claimed in other litigation by him instituted and conducted in this court, that he has removed to and resides in Elwood, Kansas, and thereby has been and is a citizen of Kansas. In the doubt by him thus created, the court is indicating all of his known possible places of residence, with a view to the assurance of his receipt of notice of the present ruling, upon any residentiary hypothesis. The cases identified in the caption, supra, are three items of litigation instituted by the same plaintiff, which have heretofore been determined by this court through rulings, all of which have been formally reported, infra, and have been affirmed by the United States Court of Appeals, Eighth Circuit, infra, of whose several affirming judgments the Supreme Court of the United States has denied review through writs of certiorari sought by the plaintiff, infra. Those cases are reported under the following identifying titles: Case numbers in this court. Titles and Citations 01322 Rhodes v. Houston, et al. (D.C.Neb.) 202 F.Supp. 624, Aff’d November 29, 1962 (8 Cir.) 309 F.2d 959, cert. den. February 18, 1963, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719; 01682 Rhodes v. Meyer, et al. (D.C.Neb.) 225 F.Supp. 80, Aff’d August 5, 1964 (8 Cir.) 334 F.2d 709, cert. den. November 16, 1964, 379 U.S. 915, 85 S.Ct. 263,13 L.Ed.2d 186; and, 01784 Rhodes v. Van Steenberg, et al. (D.C.Neb.) 225 F.Supp. 113, Aff’d August 5, 1964 (8 Cir.) 334 F.2d 709, cert. den. November 16, 1964, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186. In its rulings, and in the entry of its judgments, in those several cases, this court acted, in case numbered 01322, by and through Judge Van Pelt, one of its judges in active status, and in each of cases severally numbered 01682 and 01784, by and through Judge Delehant, a senior district judge, by competent authority duly and regularly assigned to this judicial district for active service. Those judges have been prompted to join for this court in taking submission of, and in making determination upon, the present post judgment challenges against the judgments in the foregoing several cases. They are pursuing that course, first, because of the common historical background of all of the three cases; secondly, by reason of the vital similarity of the basic allegations in the three separate complaints of the single plaintiff, by whom all of them were instituted; and thirdly, on account of the practical identity of the plaintiff’s pleadings now directly confronting this court in all of the three cases. This court. does not, at the present point, reiterate in detail its reflection of the averments of the several complaints in its cases numbered respectively 01322, 01682 and 01784. Those averments and their settings have been adequately, in fact, repetitively, disclosed and discussed in the reported memoranda announcing its rulings in the several cases, supra. Their recollection in ease No. 01322 bears the approval of the Court of Appeals, Eighth Circuit, through its express adoption of this court’s opinion in that case, Rhodes v. Houston (8 Cir.) 309 F.2d 959. Moreover, though with substantial selective restatement, their recollection in cases numbered 01682 and 01784, is also approved by the Appellate Court, Rhodes v. Meyer (8 Cir.) No. 17,580, and Rhodes v. Van Steenberg, (8 Cir.) No. 17,588, 334 F.2d 709. Accordingly, for an understanding of the allegations of the several original complaints, this court, without detailed repetition, now refers to its own earlier reported rulings, and those of the Court of Appeals, Eighth Circuit, vide supra. On September 27, 1965, the plaintiff with proof of service, filed in this court in each of the three cases an essentially identical and indistinguishable MOTION TO VACATE JUDGMENT (filing 89 in Case No. 01322, filing 39 in Case No. 01682, and filing 20 in Case No. 01784). Each such motion demanded the vacation of the judgment made and given by this court in the ease in which it was filed, and asked leave to amend the complaint by the addition to it of an exactly phrased and identical new paragraph. To provide a reflection of the substance and asserted grounds of the motion, and of the proposed and requested amendment of the several complaints, the following quotation is taken from filing 20 in Case No. 01784: “Comes now the plaintiff in the above entitled action, and moves the court, pursuant to Rule 60(b) to grant relief from the Judgment and the order of the Court herein filed on December 16, 1963 and to permit this plaintiff to amend his complaint by attaching a paragraph thereto which is hereinafter set forth. The plaintiff moves the court to vacate the judgment and permit the amendment for the reason ex-cusible (sic) neglect, suprise (sic), misrepresentation and misconduct of adverse parties. That the judgment is void and for the further reason that said judgment is unjust and not equitable and are being used by the defendants and others as a claim of res judicate (sic) and stare decisis, when in truth and in fact the District Court of Morrill County, Nebraska in Case No. 4819, State of Nebraska vs. Rhodes had no jurisdiction of the defendant, Rhodes, on November 21, 1960 for the following reason, to-wit: This plaintiff, in said action case 4819, on November 21, 1960 filed Motion for Continuance which was denied by the Court and after the denial of said continuance no notice was given this plaintiff that his application for continuance had been denied and this plaintiff was given no opportunity to be present and defend after the denial of his motion for continuance. And immediately and forthwith after the denial of Motion for Continuance on November 21, 1960, case 4819 proceeded to trial, in the absence of this plaintiff, in absentia and continued through sentencing in the absence of this plaintiff. At that time and immediately after the denial of the Motion for Continuance the Court in said case 4819 lost jurisdiction of the person of this plaintiff, and Judge Van Steenberg was without jurisdiction of this plaintiff at the time he received additional evidence on the merits of the contempt on November 21, 1960 and sentenced this plaintiff. The Judgment in case 4819 of November 21, 1960 is void for want of jurisdiction of the person of this plaintiff, and for said reason the Judgment of this Court filed December 16, 1963 should be set aside and vacated. That the plaintiff be allowed to attach the following paragraph to his complaint, to-wit: “That on November 21, 1960 in the absence of this plaintiff in case 4819, State of Nebraska vs. Rhodes, District Court of Morrill County, Nebraska this plaintiff caused Motion for Continuance to be filed in his absence. That this plaintiff was not present in Court on said day and was not represented by Counsel, and was not under bail or bond, and further was not within Jurisdiction of the Court on said day. That on November 21, 1960 the Court denied this plaintiff’s Motion for Continuance. The Court nor none of its officers on November 21, 1960 gave this plaintiff any notice that his Motion for Continuance had been denied; that this plaintiff, the accused was not given due notice of his denial of Motion for Continuance on November 21, 1960. The accused was given no opportunity to be present and defend on November 21, 1960 after his motion for continuance had been denied. The Court forthwith, without notice to this plaintiff, the accused, proceeded to trial on the merits in said case 4819 immediately after the denial of the motion for continuance; in the absence of this plaintiff, the accused, and at a time he was not present in court and not represented by counsel. The accused was not present, was not faced by his accusers or witnesses, the court rendered judgment and passed sentence in the absence of the accused. Oral Argument is requested on this Motion.” It may be understood that the motion thus filed in each of the other two cases was and is indistinguishable, mutatis mutandis, from the one just cited in respect of all of its material language thus quoted. Concerning the request for oral argument, supra, it is here noted that oral argument in open court, in Lincoln, Nebraska, on October 19, 1965 at 9:00 o’clock A.M., pursuant to due notice, was presented upon the motion theretofore filed in the three several cases, and each of them. But on November 2, 1965, in each of the three cases, the plaintiff also filed a pleading essentially identical in all of these cases, entitled “SUPPLEMENT TO MOTION TO VACATE JUDGMENT,” which appears as filing 94 in case No. 01322, as filing 44 in case No. 01382, and as filing 25 in case No. 01784. Without detailed copying of that “supplement to motion to vacate judgment” in the three cases, it is now stated that with only minor verbal variations designed to adapt it to the several cases, it charged that, in each such case, the judgment of dismissal was null and void, a) because this court in arriving at its ruling in each such case had resort to the original records of the District Court of Nebraska, especially of Morrill County therein, and of the Supreme Court of Ne-. braska (observe from the reported and now cited opinions of this court in the three several cases, the extent to which such use was made) and thereby denied the plaintiff his rights under the Fifth Amendment of the Constitution of the United States, and his right to trial by jury; and b) because, as plaintiff contends and argues, this court is bound by what the plaintiff chooses to characterize as “Rhodes v. Edmondson, case No. 02555 (.sic. See correct identification of that number, infra) in the United States District Court of Nebraska,” wherein he gratuitously asserts that “this court allowed punitive damages in the sum of $225,000.00 as a warning to all others against a similar lapse of conduct.” (See, shortly hereafter, the utter absence of basis for that position). And, finally, on December 21, 1965, the plaintiff filed, as filing 95 in case No. 01322, as filing 46 in case No. 01682, and as filing 26 in case No. 01784, a SECOND SUPPLEMENT TO MOTION TO VACATE JUDGMENT ON THE MERITS, on the ground that the trial court’s judgment on the merits in each of these actions is void for want of jurisdiction over the subject matter of the suits; and that such lack of jurisdiction arises because of the want in each case of diversity of citizenship, and the plaintiff’s thus tardy assertion that his theretofore maintained claim of jurisdiction, as of an action arising under the Civil Rights Act was and is invalid. Again, this court, recognizing plaintiff’s demand for oral argument, tendered with the prime motion in each of the three cases, entered an order for oral argument on January 31, 1966 at 9:30 o’clock A.M., at Lincoln, Nebraska, upon the SUPPLEMENT TO MOTION and the SECOND SUPPLEMENT TO MOTION. And such oral argument was then and there held. And briefs supplementing the arguments have been received. The plaintiff’s several motions, and supplements to motions, thus identified are therefore ready for ruling. However, before proceeding to its decision upon the pending motions, supra, which are before it, this court is persuaded that it should take notice, and make mention, of a further step which was pursued by the plaintiff after his filing of the several supplements and second supplements to his prime motions, but before the arguments which were held, supra, on January 31, 1966. That step is next mentioned. At some date, of which this court is not aware, but before January 10, 1966, the plaintiff properly designating himself as “the appellant,” prepared and signed a single motion or petition, with a supporting memorandum, addressed and transmitted to the United States Court of Appeals, Eighth Circuit, wherein, identifying all three of these cases by their several titles and numbers on appeal, supra, he prayed for relief in each of the three cases, which relief is thus reflected in the caption of that pleading: “MOTION OR PETITION TO VACATE VOID JUDGMENTS ON THE MERITS IN EACH OF THE AFORESAID ACTIONS FOR THE REASON THE COURT WAS IN EACH ACTION LACKING AND WITHOUT JURISDICTION OF THE SUBJECT MATTER AND POSSESSED NO JURISDICTION TO DECIDE SAID CASES OR ANY OF THEM ON THE MERITS, OR IN THE ALTERNATIVE A PETITION FOR RE-HEARING AND TO VACATE THE JUDGMENT ON THE MERITS BECAUSE THE COURT DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER NECESSARY TO DECIDE THE CASES ON THE MERITS: AND FURTHER MOTION TO VACATE THE JUDGMENTS ON THE MERITS IN EACH OF SAID ACTION AND DIRECT THE DISTRICT COURT TO VACATE THE JUDGMENT ON THE MERITS AND DISMISS THE ACTION FOR THE REASON THE COURT DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER.” Actually, the plaintiff, as appellant, twice in that motion, addressed to the Court of Appeals, and with an observable variation, stated his motion’s prayer. By the second of those statements he substantially repeated and made the demand just reflected in capital letters in the caption of such pleading. But his earlier statement therein of his pursued relief was couched in this language: “Comes now the appellant in each of the foregoing actions and moves and petition (sic) the court to vacate the judgments entered on the merits in each of the above named cases and to direct the District Court to do likewise or grant the district court permission to vacate the judgments on the merits, and dismiss the actions for the reason the court does not have jurisdiction of the subject matter in each of the said action (sic) and has no jurisdiction to render judgments on the merits in each of the aforesaid actions and the judgments in each of the aforesaid actions on the merits are void for the reason the court did not have jurisdiction of the subject matter in any of said actions.” (Emphasis added, see infra) On January 10, 1966, the Court of Appeals, Eighth Circuit, duly considered the pleading so placed before it, in its asserted pertinence to each of the three affected cases; and in each of the cases directed the clerk of that court to file the motion and memorandum, and ordered “that the motion be, and it is hereby, denied in all respects.” A copy (omitting caption) of the entry then separately made by the Court of Appeals in each of the three cases follows: “The court has considered a document entitled Motion or Petition to Vacate Void Judgments on the Merits in Each of the aforesaid actions for the reason the court was in each case lacking and without jurisdiction of the subject matter, and possessed no jurisdiction to decide said cases, or any of them, on the merits, or in the alternative a Petition for Rehearing and to Vacate Judgments on the merits because the court did not have jurisdiction of the subject matter necessary to decide the cases on the merits; and further Motion to Vacate the Judgments on the merits in each of said action (sic) and direct the district court to vacate the judgment on the merits and dismiss the action (sic) for the reason the court did not have jurisdiction of the subject matter, and supporting memorandum tendered by Appellant Paul E. Rhodes. “The clerk is directed to file the Motion and Memorandum, and it is now here ordered that the Motion be, and it is hereby, denied in all respects.” Subsequent to the entry by the Court of Appeals in each of the three cases of the order last quoted, the plaintiff herein filed in the Supreme Court of the United States a petition for a writ of certiorari to review the action of the Court of Appeals, Eighth Circuit, reflected in that order. On March 7, 1966, the Supreme Court of the United States made and entered its order denying the writ thus sought in cases numbered 01682 and 01784, by the plaintiff herein. (See 383 U.S. 939, 86 S.Ct. 1073, 15 L.Ed.2d 856) and on April 4, 1966, the Supreme Court of the United States made and entered an order denying the writ thus sought in case No. 01322 by the plaintiff herein. (See 383 U.S. 971, 86 S.Ct. 1282, 16 L.Ed.2d 311.) From the files of this court in the several actions presently under examination, it is made clearly to appear that plaintiff’s motions to vacate the orders and judgments in such actions, so filed in each of those actions on September 27, 1965, were filed, 1) in case No. 01322, three years, seven months, twenty-eight days after the entry by this court on January 29, 1962 of the order and judgment against which the motion was directed, two years, nine months, twenty-eight days after the affirmance by the United States Court of Appeals, Eighth Circuit, on November 29, 1962, of that order and judgment, and two years, seven months, nine days after the denial on February 18, 1963 by the Supreme Court of the United States of a writ of certiorari in that case; 2) in case No. 01682, one year, nine months, twenty-four days after the entry by this court on December 3, 1963 of the order and judgment against which the motion was directed, one year, one month, twenty-two days after the affirmance by the United States Court of Appeals, Eighth Circuit, on August 5, 1964 of that order and judgment, and ten months, eleven days after the denial on November 16, 1964 by the Supreme Court of the United States of a writ of certiorari in that case; and, 3) in case No. 0178k, one year, nine months, eleven days after the entry by this court on December 16, 1963 of the order and judgment against which the motion was directed, one year, one month, twenty-two days after the affirmance by the United States Court of Appeals, Eighth Circuit, on August 5, 1964 of that order and judgment, and ten months, eleven days after the denial on November 16, 1964 by the Supreme Court of the United States of a writ of certiorari in that case. And as a matter of simple computation, plaintiff’s several “supplements to motion to vacate judgments,” and “second supplements to motions” were severally filed, the former, one month, five days, the latter two months, twenty-four days, still later than the several prime “Motions to Vacate,” supra. This court has accorded respectful and careful attention to each and all of the several post-judgment pleadings by the plaintiff so filed in the three several cases, and now under consideration, in the light of the records and history of these cases. It has had due regard to the oral arguments and briefs presented by the plaintiff in support of those pleadings, and by the defendants in opposition to them. The plaintiff expressly professes to, and does, tender his motions to vacate the judgments in the several actions under Rule 60(b), Federal Rules of Civil Procedure. The complete text of that rule follows: “RULE 60. RELIEF FROM JUDGMENT OR ORDER: ****** (b) MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED EVIDENCE; FRAUD, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” It is uniformly recognized that resort by an unsuccessful litigant may not be had to Rule 60(b), generally, (see Volume 7, page 215, Moore’s Federal Practice, Second Edition, and cases cited), or to any of its several subdivisions just quoted, (see Volume 7, page 297, Moore’s Federal Practice, Second Edition, and cases cited), as a substitute for, or to serve the mission of, appeal. The citation of reported opinions to that effect would serve no present purpose, for no contention to the contrary appears presently to be advanced. See representatively, however, Hartman v. Lauchli, (8 Cir.) 304 F.2d 431, 432, and cases supportively cited therein; and Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207. The court first confronts the important issue of the untimeliness of the tender in these cases of the plaintiff’s Motion to Vacate Judgment which, with the minor verbal variation already noted, is common to all of them. It was filed in each of the cases on September 27, 1965, supra. That, therefore, is the presently critical date, for it was by such filing that the motion was “made” within the defining language of the rule, et supra et infra. This observation appears to this court to be appropriate as a reflection preliminary to the consideration of the limitations of time set out in Rule 60(b). That rule is one of those of the Federal Rules of Civil Procedure which are explicitly excepted from the liberal allowance to the trial court by Rule 6(b), of the authority to enlarge the time for the taking of actions contemplated by the rules. By Rule 6(b), after the general grant of the discretionary judicial power of enlargement of time, it is precautionarily declared, respecting the court: “but it may not extend the time for taking any action under rules 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.” (Emphasis added) present attention has, therefore, to be accorded to Rule 60(b) itself, as the measure of timeliness. It must be kept in view that, by the plain language of Rule 60(b), supra, relief under it against a judgment may be obtained, if at all, only for one or more of the following “reasons” which are numbered and identified in the rule: Identified Reason or Reasons Number “1) mistake, inadvertence, surprise, or excusable neglect; 2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); 3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; 4) the judgment is void; • 5) the judgment has been satisfied, released, or discharged, * * * or it is no longer equitable that the judgment should have prospective application; or 6) any other reason justifying relief from the operation of the judgment.” That specification of “reasons” is sueceeded immediately in the rule by the following emphatic prescription: “The motion shall be made within a reasonable time and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” The rule, therefore, imposes a twofold time limitation upon resort under it to any one or more of its reasons numbered (i) (2) and (3). Those limitations are, first, that the motion on those three grounds, or any one or more of them must be “made within a reasonable time and, secondly, that it must be made, m any event, “not more than one year after the judgment order or proceeding was entered or taken.” And that restriction has consistently been held to bar the allowance of relief for any one or more of those three reasons, either if the motion for such relief be filed more than one year after the entry of the order or judgment by it assailed, or if it be filed at any time after such entry which, m the circumstances of the case, is not reasonable, even though that interval be less than one year. Moore s Federal Practice Second Edition, pp 238 as to reason (1), 242 as to reason (2) and 247 as to reason (3), and its author s pertinent textual discussion Ledwith v Storkan (D.C.Neb.) 2 F.R.D. 539; Woods v. Severson (D.C.Neb.) 9 F.R.D. 84; Vaughan v. Petroleum Conversion Corporation (D.C.Conn.) 120 F.Supp. 175, 178; United States of America v. 140.80 acres of Land more or less (D C. La.) 32 F.R.D. 11, 14; Tobriner v. Chefer, 118 U.S.App.D.C. 246, 335 F.2d 281, 282, 283; Schildhaus v. Moe (2 Cir.) 335 F.2d 529, 531; Mayfair Extension, Inc. v. Magee, 100 U.S.App.D.C. 48, 241 F.2d 453, 454; Radack v. Norwegian American Line Agency, Inc. (2 Cir.) 318 F.2d 538, 541 And to obtain relief under Rule 60(b) for any of the “reasons” specified in the rule, supra, except reasons (1), (2), and (3), the motion for such relief must “be made within a reasonable time.” In that relation, whether a period time, after the entry or taking of a judgment or order, which elapses before the making of the motion for relief against the judgment or order is, or is not> reasonable is to be determined by all of the circumstances of the particular case. within ^ language of «reason» (1) of Ru]e 60(b) supra> the present plain_ tiff b a liberal understanding of Mg Motion tQ Vacate and itfl supplemen_ teti be considered to have attempted to regt hig currentl ding Motion to Vacat as supplemented) in part on the grounds of «su ise and excusable ne- ¿ „ and> ^ L doubtfully, infra, 0f „mistake„ and «inadvertence.” It is true ^ in h¡s «Motion to vacate,” as filed ¡n cage Nq_ 01322; he does notj in ipsis attribute his plight to “excusable neglect„ Qr u ise„ in like manner as he attributes it in each of the other two cages_ It is also true that in none of the three cageg doeg he lidtly assign d_ ther «mistake„ or «inadvertence” as a ground for the motion, But in his oral argument> especially on October 19, 1965, he gignified that he made the same con. tentiong in regpect of grounds for relief> in cage No_ 01322) as he did in cases num_ bered 016g2 and Q1784_ The court haS) therefore; approached its ruling with the probably toQ Hberal tbought that he un. dertook to rest upon “surprise” and “ex-cugable neglect„ equally in aU three of the cases. Moreover, that same argument was as nearly oriented to “mistake” or “inadvertence” as to “surprise” or «excusable neglect/. although it actua„y failed adequately to support by factual specification; any of those identified grounds for relief. The court has, therefore, regarded the “Motion to Vacate” as if, in general terms, it had asserted the presence of mistake, inadvertence, surprise and excusable neglect, within the contemplation of “Reason” (1), and that, despite the inexact and unparticularized assignments just mentioned. A careful and tolerant reading of the “Motion to Vacate,” as supplemented, has led the court to the conclusion both that the plaintiff does not claim the existence of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);” and that, if he may be considered to make any such claim, he fails both to identify such evidence, and by specification to support the very important aspect of its undiscoverability in time to move for a new trial. “Reason” (2) is, therefore, regarded as not before the court. It is true that, although without adequate, or any real, factual specification, the plaintiff, in each of the three cases, asserts the existence of “misrepresentation and misconduct of adverse parties.” Hence, reserving the problem of the adequacy of its assertion, the court deals with the question of the timeliness of the pending motions with supplementations, in so far as “Reason” (3) extends. Respecting “Reasons” (1), (2), though (supra) it is not regarded as tendered, and (3) of Rule 60(b), and each of them, the court holds that neither the prime “Motion to Vacate” nor either of its supplementations, was tendered timely under Rule 60(b), and that, because of such untimeliness, the plaintiff’s several demands for relief on those grounds, or either or any of them, from the several judgments must be denied. Such a demand is barred by the lapse of the rule’s maximum period of one year after the entry of each of the judgments. Besides, as will presently be disclosed, the court also considers that, wholly apart from that prescription of a strictly measured time limit, the filing of the “Motion to Vacate” did not occur “within a reasonable time” after the entry of any of the three judgments. Proceeding further through Rule 60 (b), the court is of the opinion that the plaintiff, by his Motion to Vacate in each of the three cases, charges that the judgment in each of those cases is void. Dealing, yet, only with the factor of timeliness of the Motion to Vacate, as supplemented, the court reserves until later herein the question of the adequacy of the charge that its several judgments are actually void. “Reason” (5) under Rule 60(b) seems not effectively, or at all, to be resorted to. None of the three judgments involved “has been satisfied, released or discharged.” The first of the three clauses of “Reason” (5) is, therefore, simply inapplicable. The second clause of “Reason” (5) is equally inapplicable, because none of the three attacked judgments is “based on a prior judgment which has been reversed or otherwise vacated.” Inapplicable, too, is the third clause of “Reason” (5) which has chiefly to do with decrees possessing continuing controllingly operative consequence rather than judgments finally, and without persisting jurisdiction, terminating litigation. And the plaintiff himself has not directed his or the court’s attention to that aspect of the rule. “Reason” (6), pertaining to “any other reason justifying relief from the operation of the judgment,” is asserted also in generality by the plaintiff in each case. However, let it be understood that “Reason” (6) may not be invoked on any ground within the definition of any of “Reasons” (1), (2), (3), (4), or (5). The court, therefore, considers that plaintiff has undertaken to seek the vacation of the judgments in the three several cases, both as void, under Reason (4) of Rule 60(b), and “[for] any other reason justifying relief from the operation of the judgment,” under “Reason” (6) of Rule 60(b), as thus limited in its reach in the concluding sentence of the last preceding paragraph hereof. But, having regard, still, to the issue of the timeliness of his present recourse, the court is convinced that none of his motions to vacate, as modified, in the several cases, was made “within a reasonable time” under any rational evaluation of that requirement of the cited Rule. Tobriner v. Chefer, 118 U.S.App.D.C. 246, 335 F.2d 281, 282, 283. Briefly recalling again the varying intervals between the entry, or taking, of the several assailed judgments in the three cases involved, on the one hand, and on the other hand, the filing of the several motions to vacate the respective judgments, these intervals were three years, seven months, twenty-eight days in case No. 01322; one year, nine months, twenty-four days in case No. 01682; and one year, nine months, eleven days in case No. 01784. More than that, the interval was long enough in each case for the plaintiff’s unsuccessful prosecution in each of those three cases of an appeal to the United States Court of Appeals, Eighth Circuit, and the pursuit thereafter of his equally fruitless effort to obtain review by the Supreme Court of the United States under a writ of certiorari, in respect of each such case. For, after the denial of a writ of certiorari, and before the filing of the Motion to Vacate, there was a lapse of two years, seven months, nine days in case No. 01322, and ten months, eleven days in each of cases numbered 01682 and 01784. That is simply intolerably long in each case. And, viewed otherwise, it demonstrates the plaintiff’s disdain of any remedy he may have thought himself to possess under Rule 60(b) so long as, and, indeed, until long after, he might — and did — remain in the direct appellate channel, of adjudication. And that observation is not made in a spirit of criticism, for it was within that channel that his several cases belonged in his quest of relief on any ground he now asserts. It is to be kept in view, also, that, if and to the extent that any position upon which the plaintiff now relies may have any virtue, it was continuously known by him, and available to him, from and after the entry of the judgment now assailed in each of the three cases. His course in the several cases closely approaches, in fact, actually constitutes, trifling with this court, and that through indefensibly long separate intervals of time in the several cases. This court regards the plaintiff’s submission of his Motions to Vacate in the several cases, and his supplementations thereof, as recognizing the necessity that, insofar as he relies for the relief thereby sought on Reasons (1) and (3) and (6), or any of them, such motion must be made within a reasonable time, and for Reasons (1) and (3), or either of them, not longer than one year, after the entry of the judgment in each of the several cases. Both of those limiting provisions stand athwart his demands for relief, alike for “Reason” (1) and for “Reason” (3); and the limitation of “a reasonable time” bars his quest of relief for Reason (6). In his submission, to the extent that it is based on “Reason” (4), that is to say, upon the contention that the judgments are void, plaintiff appears to argue that if it be granted, or determined, that a particular judgment is void, then, it may be treated, without more, as a nullity and vacated, quite irrespective of the rule’s prescription touching the time of the tender of that issue under Rule 60 (b). However, because, as will presently appear, the plaintiff’s specifications of the distinct and separate grounds of utter invalidity (vide infra) in the several judgments are without virtue, this court is convinced that none of the three judgments of this court is void. And it considers that the requirement of Rule 60(b), on the score of the time for the making in each case of a motion to vacate, is operative as to each of such judgments. And the motion, on that ground as here asserted, to vacate in each case is, therefore, vulnerable to denial on the ground of its untimely filing. It was not filed in any of the three cases “within a reasonable time” after the order or judgment assailed in any of the cases was entered or taken. Rule 60(b) Plaintiff’s demands for vacation of the judgment in each of the three cases on the ground that the several judgments are void are presented in different pleadings, and rest on a variety of asserted bases. Thus, in his “Second Supplement to Motion to Vacate” filed on December 21, 1965, he demanded such vacation on the ground of the alleged absence in each, or any, of the cases, of jurisdiction of the subject matter of the action, supra. And he professes to find that want of jurisdiction in the asserted objective invalidity then by him first advanced of his own averment in the inception, and throughout the course theretofore of each of the cases, that this court’s jurisdiction over the litigation arose out of the violation by the defendants of his civil rights within the protective guaranty of the constitution and laws of the United States. In that volteface, he insists that the trial court, in response to the motions to dismiss served and filed by his adversaries, should simply and solely have dismissed his several complaints for want of jurisdiction of the subject matter thereof. This court readily recognizes that its jurisdiction over the subject matter of a case must validly exist, and may not come into being by stipulation or agreement of the parties, or even through estoppel in the ordinary sense. It recognizes, too, that, in his complaint in each of the three cases now before it, the plaintiff explicitly asserted, and vigorously contended for, subject matter jurisdiction under the nineteenth century Civil Rights legislation, and that in their pleadings before the court, the defendants, by motions to dismiss, resisted that position and sought dismissal because of its asserted invalidity. Civil No. 01322, the suit against Houston and others, was filed on September 21, 1961. It ran its course, as already set out herein, through dismissal by this court, affirmance by the Court of Appeals, and denial of certiorari, the last step of which occurred on February 18, 1963, supra. In that case, the plaintiff in his complaint alleged that, in addition to other presently immaterial jurisdictional prescriptions, this court possessed jurisdiction of the action under Title 28 U.S.C., section 1343, and Title 42 U.S.C., sections 1983 and 1986, and (without particularization) the fourteenth, fourth, fifth, sixth, eighth and thirteenth amendments of the constitution of the United States, and Article I, section 9 of such Constitution. He undertook thereby to invoke the jurisdiction of this court upon the basis of violations of his constitutionally guaranteed civil rights. Service and filing were made of some fifteen separate motions to dismiss the complaint (filings 18 to 32). Each of such motions was tendered in behalf of one or more, and, together, they were tendered in behalf of all, of the defendants. In each of those motions, the dismissal of the complaint was demanded on sundry grounds, including (a) the failure of the complaint to state a claim within the protection of the Federal Civil Rights Act, or any other statutory or constitutional provisions, upon which the plaintiff sought to predicate his action, and (b) the failure of the complaint to state a claim upon which relief could be granted against any such defendant making, or joining in, such motion. Among other questions which the several motions presented against the complaint and in quest of its dismissal, all of the motions then tendered the two grounds last mentioned. Assigned also in the motions to dismiss, as a significant factor supporting the ground of failure of the plaintiff’s pleading to state a claim on which relief could be granted, was the moving parties’ contention of their protection under the doctrine of judicial or quasi judicial immunity to suit, such as that brought by the plaintiff.' This court, Judge Van Pelt presiding, took submission in case No. 01322 of the several motions to dismiss, and on January 29, 1962, made and entered in the case an order, (a) granting and sustaining each and all of the motions, (b) dismissing the plaintiff’s complaint, and (c) quashing sundry subpoenas issued in anticipation of a then contemplated hearing in the case, rendered purposeless by its dismissal. And Judge Van Pelt filed, on January 31, 1962, a memorandum opinion announcing the ruling, and declaring the grounds for its entry. Rhodes v. Houston (D.C. Neb.), 202 F.Supp. 624, supra. The memorandum opinion in the Houston case just adverted to opens with the following paragraph: “This is an action based upon the federal Civil Rights Act brought by Paul E. Rhodes as plaintiff against a number of Nebraska judicial and law enforcement officers, a North Platte, Nebraska law firm and the bonding companies of a number of the defendants.” (Emphasis added) And, though without formal analysis and discussion or judicial argument, this court, by way of decision, thereby accepted the plaintiff’s own classification, within the jurisdictional reach of the Civil Rights Act of the nineteenth century, of case No. 01322. And it proceeded forthwith to the consideration of, and the sustaining ruling upon, the then pending motions to dismiss on the other grounds assigned therein, but chiefly, for the complaint’s failure to state a claim on which relief could be granted, Rule 12(b)(6), Federal Rules of Civil Procedure, and on the ground of judicial or quasi judicial immunity of the several moving individual defendants to such a suit. Thus, by necessary implication, as well as by the defining paragraph of the opinion last above quoted, this court affirmed its jurisdiction of the action under the earlier Civil Rights Act. Logically, too, an affirmative adjudication of the existence of jurisdiction underlies, and is involved and implied, in the dismissal of a complaint on the score of its vulnerability to Rule 12(b) (6), supra, or on the interrelated ground of the individual defendants’ immunity to a suit of the character involved, or on both of such grounds. As has already been observed, the ruling just considered was by the Court of Appeals, Eighth Circuit, affirmed on the basis of Judge Van Pelt’s memorandum, and without further opinion, supra. On December 3, 1963, thus nearly two years after the entry of the dispositive order or judgment of this court in Rhodes v. Houston, supra, this court, Judge Delehant presiding, filed its memorandum opinion, and its order and judgment (filings 32 and 33) granting and sustaining the several motions of the defendants to dismiss the plaintiff’s Amended Complaint in case No. 01682, Rhodes v. Meyer, and dismissing such Amended Complaint. And six days after that ruling in Rhodes v. Meyer, supra, this court, Judge Delehant again presiding, filed its memorandum opinion and its order and judgment (filings 14 and 15) making like ruling in case No. 01784, Rhodes v. Van Steenberg. It is here recalled that at the times of the several rulings of this court in cases numbered 01682 (Meyer) and 01784 (Van Steenberg), this court’s ruling in case No. 01322 (Houston), not only had been delivered for almost two years, but had also been affirmed on Judge Van Pelt’s opinion for more than a year; and that the denial of certiorari in it had occurred more than nine months before the Meyer and Van Steenberg cases were decided in this court, supra. It was in the face of that history that this court ruled in cases numbered 01682 and 01784, and each of them. As in case No. 01322, so in each of cases numbered 01682 and 01784, the several motions to dismiss the plaintiff’s amended complaint challenged this court’s jurisdiction of subject matter under the Federal Civil Rights Act, and pleaded the immunity to such suit of each moving individual defendant. In respectful recognition of the foregoing then recent history of case No. 01322, this court, in each of cases numbered 01682 and 01784, followed the course pursued in case No. 01322, and sustained the pending motions to dismiss for failure to state a claim on which relief could be granted, Rule 12(b)(6), and by reason of the immunity to such a suit with which the law protects each moving individual defendant. Thereby, although the court in its memoranda in cases numbered 01682 and 01784, signified its doubt touching the jurisdictional applicability of the federal Civil Rights Act, it judicially accepted the plaintiff’s affirmative position upon that jurisdictional question in each of the two later cases, and proceeded therein to decision on the basis of the fatal inadequacy of the amended complaint’s statement of a claim to support the allowance to him of any relief, and of the immunity to suit possessed by the individual defendants. Upon the jurisdictional issue, the court made essentially indistinguishable comments in both of the later two opinions. That comment in case No. 01682 (225 F.Supp. 80 at page 96), is- in this language : “Each motion to dismiss asserts as one of its supporting grounds that the plaintiff’s claim asserted in the amended complaint is not within the protection of the Federal Civil Rights Act, or any other statutory or constitutional protection upon which plaintiff seeks to predicate his action. From the files in Case No. 01322, Rhodes v. Houston, supra, it appears that each motion to dismiss in that action also made a like assertion, and thereby challenged the court’s jurisdiction. In the case last mentioned, Judge Van Pelt appears not to have made explicit determination upon the question thus presented, but rather to have passed upon the motions before him upon the questions of the adequacy of the complaint to state a claim supporting relief, and the related immunity to suit of the defendants. Confronted with a like situation, the court is presently pursuing a similar course. But it must not be understood as rejecting the jurisdictional position of the moving defendants, or as minimizing its vital significance. It is an important, and probably a vital, issue whose determination against the plaintiff would obviate the necessity of presently meeting any other problems now presented. And the writer of this memorandum acknowledges grave doubt whether, even on paper, the plaintiff has brought himself under the jurisdictional coverage of the Civil Rights Act, whether that Act ever has been or, even with its current liberal application, is, operative to confer jurisdiction on this court to determine, as between citizens of Nebraska, controversies that arise out of what is essentially a suit for damages on account of false imprisonment or malicious prosecution, or both.” The like, though not verbally identical comment, in case No. 01784 need not be repeated. The court, therefore, upon the present submission, considers that, in its earlier determination of each of the three cases, and through both of the presently acting judges, it judicially accepted the plaintiff’s claim of jurisdiction of subject matter under the Federal Civil Rights Act. Such acceptance is inevitably involved in the ruling made by this court upon the motions in each of the cases. But the plaintiff, in his present motions in the several cases, now, and despite his own declaration, in each of his complaints, of this court’s jurisdiction over the subject matter in each of the three cases, contends that such jurisdiction did not actually exist in any such case, and that this court’s acceptance of jurisdiction and its ensuing judgment in each of the cases is utterly void. That position, in the context of this litigation is unsupportable. Without purposeless repetition, it is recalled that in each of the three cases at which the instant motions to vacate are directed, the plaintiff in his complaint positively alleged this court’s jurisdiction of the subject matter of the suit under the Civil Rights Act of the nineteenth century, and that, by motion, each defendant denied and challenged the existence of such jurisdiction. In each of the cases, this court accepted the plaintiff’s claim of that jurisdictional base. Moreover, it proceeded forthwith in each of the three cases to the exercise of that jurisdiction, and made a ruling and entered a judgment which rested inevitably upon the existence of such jurisdiction. Upon appeal, each of those judgments was affirmed, and certiorari to review that affirmance was denied, supra. Confronted by the complaint in each of the cases, and the several motions tendering the issue of the court’s jurisdiction of the litigation’s subject matter, this court possessed without question the jurisdiction and authority, in fact, had the duty, Rule 12(d), Federal Rules of Civil Procedure, to determine upon its own jurisdiction. In each of the three cases, it accepted such jurisdiction, thus holding for the plaintiff upon that issue. That course constituted a judgment of the court, a ruling which, by definition, underlay the further action of the court sustaining the motions to dismiss, and adjudging the dismissal of, each complaint. That judgment accepting jurisdiction was not void. It was, indeed, subject to reversal on appeal, if it had been adjudged, in the appellate process to have been erroneous. But, upon its affirmance on appeal, and the coming down of the Mandate, it became res judicata on the issue of jurisdiction over subject matter. Stoll v. Gottlieb, 305 U.S. 165, 171 to 177, 59 S.Ct. 134, 83 L.Ed. 104; Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; American Surety Company v. Baldwin, 287 U.S. 156, 166, 167, 53 S.Ct. 98, 77 L.Ed. 231; Des Moines Navigation and Railroad Company v. Iowa Homestead Company, 123 U.S. 552, 558, 559, 8 S.Ct. 217, 220, 31 L.Ed. 202, in which the court, inter alia, said: “In the suit now under consideration there was a separate and distinct controversy between the plaintiff, a citizen of Iowa, and each of the citizens of New York, who were defendants. Each controversy related to the several tracts of land claimed by each defendant individually, and not as joint owner with the other defendants. Three of the citizens of New York caused to be made and filed the necessary affidavit and petition for removal, and thereupon, by common consent apparently, the suit as an entirety was transferred to the Circuit Court for final adjudication as to all the parties. The plaintiff, as well as the defendants, appeared in the Circuit Court without objection, and that court proceeded as if its authority in the matter was complete. Whether in such a case the suit could be removed was a question for the Circuit Court to decide when it was called on to take jurisdiction. If it kept the case when it ought to have been remanded, or if it proceeded to adjudicate upon matters in dispute between two citizens of Iowa, when it ought to have confined itself to those between the citizens of Iowa and the citizens of New York, its final decree in the suit could have been reversed, on appeal, as erroneous, but the decree would not have been a nullity. To determine whether the suit was removable in whole or in part or not, was certainly within the power of the circuit court. The decision of that question was the exercise and the rightful exercise of jurisdiction, no matter whether in favor of or against taking the cause. Whether its decision was right, in this or any other respect, was to be finally determined by this court on appeal. As the circuit court entertained the suit, and this court, on appeal, impliedly recognized its right to do so, and proceeded to dispose of the case finally on its merits, certainly our decree cannot, in the light of prior adjudications on the same general question, be deemed a nullity.” Forsyth v. City of Hammond, 166 U.S. 506, 517, 518, 17 S.Ct. 665, 41 L.Ed. 1095; Treines v. Sunshine Mining Company, 308 U.S. 66, 76, 77, 78, 60 S.Ct. 44, 51, 84 L.Ed. 85, wherein the court said: “One trial of an issue is enough. ‘The principles of res judicata apply to questions of jurisdiction as well as to other issues,’ as well to jurisdiction of the subject matter as of the parties.” (Emphasis added) In a footnote to the sentence last quoted, the Supreme Court, reaffirmingly, alluded to Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104, wherein that court had earlier declared: “After a federal court has decided the question of the jurisdiction over the parties as a contested issue, the court in which the plea of res judicata is made has not the power to inquire again into that jurisdictional fact. We see no reason why a court, in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation.” (Emphasis added) Yanow v. Weyerhaeuser Steamship Company (9 Cir.) 274 F.2d 274, (especially discussion pp. 279 to 281); Menashe v. Sutton, (D.C.N.Y.) 90 F.Supp. 531, 532, 533; Morse-Starrett Products Company v. Steccone (9 Cir.) 205 F.2d 244; Radack v. Norwegian America Line Agency, Inc. (2 Cir.) 318 F.2d 538, 542; Goldfine v. United States (1 Cir.) 326 F.2d 456, 457. In the instant context, this court is satisfied that the earlier rulings of this court accepting and administering the then challenged jurisdiction of subject matter, which rulings have severally been affirmed on direct appeal, are not now to be relitigated and abandoned. This court also observes that, in an affidavit filed in these cases as recently as October 14, 1965, supportive of a motion for appointment of counsel in this post-decisional proceeding (concerning which, vide praesertim infra), the plaintiff himself, said, touching the character of these cases: “Paul Rhodes, being first duly sworn upon oath, deposes and says that he is the plaintiff in each of the above actions brought under the Civil Rights Statutes of the United States of America, and that no diversity of citizenship jurisdiction was claimed in each of the above actions, and that said action (sic) were to recover for violation of Federal Civil Rights.” That affidavit was filed, supra, after the filing in the cases of the pending Motions to Vacate. It was not until slightly later that he chose to repudiate the position which it discloses and upon which he had theretofore undeviatingly relied. Next encountered is the present consequence of the history of each of these three cases, first, in this court, thereafter in the Court of Appeals, Eighth Circuit, and, finally, in the Supreme Court of the United States. By citation, supra, of the reported course of each of the cases in those courts, that history has already been brought into focus for the purpose of this aspect of the present ruling. It is not again set out herein in detail. It is sufficient, first, to recall that, substantially prior to September 27, 1965, when the prime Motions to Vacate judgments were filed, one in each of the cases, each such case had been determined in this court, and appealed to, and submitted in, the United States Court of Appeals, Eighth Circuit, and affirmed by the latter court; that denial had been made by the Supreme Court of the United States of plaintiff’s petition in each ease, addressed to that court, for a writ of certiorari to review the action upon such case of the Court of Appeals; and that the resulting mandate of affirmance had been issued and filed and entered in this court in each such case; and to recall, as well, the several dates as of which such successive actions were taken in each of the three cases. That recollection discloses the plight of each of the cases on the date when the now pending Motion to Vacate judgment in it was filed. In each such case, the Motion to Vacate judgment then filed demanded that this court vacate a judgment of dismissal made and given by this court, and affirmed on appeal by the Court of Appeals, Eighth Circuit, of which affirmance the Supreme Court of the United States had denied review. Moreover, that historical status persisted through the dates on which the plaintiff filed in each of the cases, both the supplement to Motion to Vacate Judgment, and the second supplement to motion to vacate judgment on the merits. Now, in the face of the history of the three cases thus recalled, the several motions, as respectively supplemented, supra, prayed for and demanded that this court, in each case, vacate and set aside the final judgment by this court theretofore made and given, of which, on appeal, there had been an unequivocal affirmance, followed by the denial of certiorari, and the issuance and filing of the mandate of affirmance. Moreover, although this court, on October 19, 1965, had taken submission, by oral argument, of the three prime motions to vacate judgments in the several cases, the supplement to motion to vacate judgments, and the second supplement to motion to vacate judgments on merits, in the three cases were not filed until shortly after October 19, 1965, (i.e. on November 2, 1965 and November 21, 1965, respectively), and hearing upon them was held by this court on January 31, 1966, supra. But, before that hearing, the plaintiff had tendered to the Court of Appeals, Eighth Circuit, the consolidated motion in all of the three cases, for filing and submission in each of the three cases, which was, by order of that court, on January 10, 1966, filed in that court in each of the cases, and denied on the same day. With each of the cases in the position thus matured, the argument of January 31, 1966, supra, on the supplement, and second supplement to the Motion to Vacate in each case was held. And it was, thereafter, thus, after the final argument, that the Supreme Court of the United States denied certiorari to review the rulings of the Court of Appeals, Eighth Circuit, made and entered on January 10, 1966. Obedient to settled authority, this court now holds that it may not properly grant, in any of the three cases, the relief by the plaintiff sought in each of the cases, by his Motion to Vacate Judgment, and the Supplement and Second Supplement thereto. And it is persuaded that such conclusion is supported by the state of the record in each case just reviewed in the light of the considerations next advanced. By way of textual statement, it is said in 7 Moore’s Federal Practice 339, that: “Where the appellate court has affirmed or reversed, then relief by the district court under 60(b) must reckon with the appellate court’s mandate. ‘The authorities seem uniform that a mandate from a reviewing court is controlling as to all matters within the compass of such mandate and as to such matters the district court, after remand, can take no further action.’ At times a motion for relief will not raise matters that are within the compass of the mandate, and in that event the district court clearly has the power to proceed. But where the action which the district court is asked to take under 60(b) would disturb the judgment which the appellate court’s mandate ordered, or would otherwise be inconsistent with the mandate, the general doctrine is that the district court lacks power to proceed with the motion unless and until leave is granted by the appropriate appellate court.” (Emphasis added) The utter divergence of the relief sought by the pending motions from the affirmed judgments at which the present motions are severally directed may not be doubted. The invulnerability to a trial court’s intrusion upon, or disregard of, a judgment or decree founded in, or supported by, an appellate mandate, is devoid of novelty. For example, in 1897, Mr. Justice Gray in In re Potts, 166 U.S. 263, 267, 268, 17 S.Ct. 520, 521, 522, 41 L.Ed. 994, wrote: “When the merits of a case have been once decided by this court on appeal, the circuit court [by which name the trial court was then known] has no authority, without express leave of this court, to grant a new trial, a rehearing or a review, or to permit new defenses on the merits to be introduced by amendment of the answer. Ex parte Story, 12 Pet. 339 [9 L.Ed. 1108]; Southard v. Russell, 16 How. 547, [14 L.Ed. 1052]; Ex parte Dubuque & P. R. Co., 1 Wall. 69, [17 L.Ed. 514]; Stewart v. Salamon, 97 U.S. 361, [24 L.Ed. 1044; Gaines v. Rugg, 148 U.S. 228, 13 S.Ct. 611, [37 L.Ed. 432]. In this respect a motion for a new trial or a petition for a rehearing stands upon the same ground as a bill of review, as to which Mr. Justice Nelson, speaking for this court, in Southard v. Russell, above cited, said: ‘N