CLARK, Circuit Judge.
This is a later stage of a case previously before us and reported as W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, 2 Cir., 155 F.2d 321. That appeal involved solely a question of jurisdiction. Hedger, the owner of tugs and vessels subject to a preferred ship mortgage, had consented to a decree of the district court, March 8, 1945, foreclosing the mortgage. Then on April 4, 1945, it instituted a suit by summons and complaint asking for the vacation of the consent decree, an accounting, damages, and other relief. The district court dismissed this suit for lack of jurisdiction, holding that its powers would be limited to consideration of a libel in review, to the exclusion of a “bill in equity to nullify the consent decree and to recover damages.” This court agreed with the lower court on the issue of substance, holding that its powers were restricted by the limitations of federal jurisdiction to what it could appropriately do on a libel in review or, within the term, a petition to vacate the decree; it differed with the district judge as to the procedure, however, since it thought that the so-called complaint would actually fulfill all the functions of such a libel or petition. Accordingly it affirmed the decree so far as that dismissed a claim of a third individual (Hedger individually), but reversed it as to the Hedger Company and directed that the complaint be considered a petition in the foreclosure suit to vacate the decree. It did, however, exclude therefrom certain claims for damages for abuse of process and for repayment of sums paid under a mutual mistake of fact (Arts. 67-69 of the complaint) as not being within the admiralty jurisdiction. It expressly refrained from passing upon the legal sufficiency of the complaint as a petition for the purposes stated.1
Upon the going down of the mandate the district court transferred the case from its equity docket to the admiralty docket as a part of the former foreclosure case. Then it set the case for a hearing before the same judge who presided at the foreclosure hearing. He heard the parties and thereafter dismissed the complaint for legal insufficiency, writing a lengthy opinion, 70 F.Supp. 578. Respondent then filed a motion to expunge this opinion on the grounds that there was no motion regularly before the court and that the judge was disqualified, since he had conducted the original foreclosure hearing. This was heard and denied by another district judge. Next respondent filed a motion to vacate the decree, which was heard and denied by the original judge upon consideration of a further brief from respondent. This appeal is from not only the original decree of dismissal, but also the two further orders denying respondent’s motions.
The substantial question on this appeal is whether the “complaint,” now become a petition to reopen and vacate, [12]*12is sufficient in law, or more particularly whether it shows a legal basis for vacating a formal decree of the district court. True, respondent also states, without argument, its contention that it was denied due process of law by reason of the disqualification of the judge and the latter’s treatment and dismissal of the petition. But in any event we can see no error here if the judge’s main legal conclusion was and is sound. The mandate of this court directed certain actions by the district court, and no motion of the parties was necessary to stimulate the judge to obedience. We see no ground of disqualification in that the issue was referred to the judge who should know most about it — a course which seems sensible and is not a statutory ground of disqualification. 28 U.S.C.A. § 24. Nor are we cited to precedents otherwise. Compare Frank, Disqualification of Judges, 56 Yale L. J. 605 et seq. And the judge certainly allowed respondent full opportunity to present its legal claims, as we are doing on this appeal. We are sure that respondent has been deprived of no constitutional or other rights by the course the proceedings have taken, and we pass therefore to the substantive issue decided below in libellant’s favor.
The petition is long and detailed, containing seventy-one paragraphs or Articles, of which, as we have seen, three have been eliminated on the previous proceedings. It also contains seven prayers for relief. Not unnaturally for so lengthy a document it tends to be both verbose and abstract and conclusory in its allegations. Nevertheless, the main gravamen of the, petition, as we pointed out in the earlier appeal, can be discovered; and we are now aided by the complete record of the earlier hearing. Respondent complains because the trial judge in his opinion regretted the absence of these records before the court on the earlier appeal, “as they will be in an appeal from this decision,” 70 F.Supp. 578, 581, saying that this constitutes an admission that the judge considered proceedings in the foreclosure action. But he would have been remiss in his complete consideration of the case had he. not done so to the extent that they were relevant. It is of course thoroughly settled that the court takes judicial notice of its own records, particularly in the very case;2 and it is hard to see how a petition to vacate a decree can be intelligently appraised without examining the circumstances under which the decree was entered. Here the transcript of the earlier hearing adds life and color to what doubtless would be apparent from the more formal documents of record and furnishes the background against which this quite remarkable claim must be viewed.
The proceedings began in a normal way in the district court on February 10, 1945, with a libel for a foreclosure of a preferred ship mortgage and the issuance of process in rem against the vessels. This is not only usual, but is also the only way of proceeding in the case of these mortgages, which since 1920 have been brought within the exclusive jurisdiction of admiralty. 46 U.S.C.A. § 951, providing for enforcement “by suit in rem in admiralty,” with original jurisdiction granted “to the district courts of the United States exclusively.”3 After [13]*13citation and notice to the Hedger Company, the owner and respondent-appellant here, the latter on February 21, 1945, filed its answer, in which, while it admitted the execution of the preferred mortgage of March 21, 1939, it denied that it received good and valid or adequate consideration for the notes secured, as well as “any present obligation to pay any sum of money or interest to the libellant.” It then went on to state in some detail its defense which again figures prominently in the present proceedings. This grows out of an asserted joint venture between the Hedger and Bushey interests beginning on July 30, 1932, from operation of the Hedger boats, purchased upon foreclosure by the New York Scow Corporation, a Bushey subsidiary, and then subjected to a mortgage of about $155,000 to a third party. The Hedger Company was formed to operate the vessels and to pay off the indebtedness. According to respondent’s assertions a large sum of money had been paid from the earnings by the 23d day of December, 1938, but the Bushey interests then represented to Hedger that there was approximately $400,000 due on open account and that certain other boats should be purchased for $200,000, with the result that certain transactions were had by which the Hedger Company gave the mortgage in question to the Scow Corporation on March 21, 1939, for $600,000, $400,-000 representing the amount claimed for barge and tug • hire and repairs, and the balance the purchase price of the additional vessels. It was asserted that these amounts were not due, although Hedger was unable to obtain an accounting from the libellant, now assignee of the mortgage. Further, it was said that on December 21, 1944, the Hedger Company and Hedger individually had brought an action in the Supreme Court of the State of New York against the Bushey interests to compel an accounting. The answer concluded with not only general prayers for dismissal of the libel, for damages, and for other and further relief, but specific prayers that the action be deferred until the conclusion of the state court action, that a joint receiver with Hedger be appointed under 46 U.S.C.A. § 952 to operate the vessels, and that, if the court determined that it would proceed in this action without regard to the state court action for an accounting, then the matter be referred to a special master for an accounting between the parties. ,
No attempt having been made by respondent to secure release of the vessels, permitted by filing a bond or security pursuant to the statute, 28 U.S.C.A. § 754, Admiralty Rule 12, 28 U.S.C.A. following section 723, or the local rule, E.D.N.Y. Admiralty Rule XXI, the libellant took steps to ask for an immediate hearing, which the court proceeded to grant. This was also in accordance with a local rule to avoid long and expensive custody of many vessels, here 32 in number, by the United States marshal. Respondent, however, made extensive efforts to delay the hearing, by direct application, by filing exceptions to answers which the libellant had made with promptness to its interrogatories, by asking for preliminary hearing on such exceptions, and so on. This is a significant feature of this case in connection with respondent’s main contention on this appeal, namely of coercion through libellant’s abuse of process. The normal form of such duress is by steps taken to prevent a litigant from reaching a court to protect his interests. Here the situations are reversed. At all times the party accused of the abuse is endeavoring to get before the judge and to have the case thoroughly heard, while the party who claims to be the victim has strenuously opposed such judicial hearing.
In any event the court did set the trial for March 7, 1945, and it began on that day before Judge Byers. The record of the hearing discloses how thoroughly the points at issue and the respective positions of the parties were explored with the judge. An opening statement on behalf of the libellant [14]*14called attention to much of the dispute, with a direct statement of the state court action for an accounting. Libellant’s counsel pointed out that of the original $600,000 mortgage there was a forgiveness of about $290,000, and an application of payments out of earnings reducing the sum until, as it was asserted, the parties agreed in 1944 that it was $115,000, which was covered by installment notes, of which the failure to pay one then due had led to the proceedings. Then respondent’s counsel in his opening statement immediately went back to the joint venture starting in 1932 and made his general position quite dramatically clear. Thus he said, among other things, that the Hedger interests had turned over to Bushey over $1,000,000 in cash and property during the period, and that “Mr. Bushey and his associates have been milking the Hedger Company and Mr. Hedger for some twelve years and had them right by the scruff of the neck where they could not help themselves because of the various amounts that they claimed to be owing at that time.” As a-, result of this fairly extensive discussion the court said to resp'ondent’s counsel: “In other words, you claim that the amount said to be due is not due?” and receiving the answer, “That’s right,” made the rather natural response: “Then it seems to me, my duty to go ahead and take testimony.” Counsel agreed, but stated he was not prepared to go ahead with all his evidence that day, to which he received the courteous response from the court that “you may be assured that you are not going to be forced. I have tried to make that clear.”
But before going to the testimony respondent’s counsel went on to say that he had tried to tender the amount due in order to have the boats released, so that they would not be idle and held up, and to allow the accounting issues to be tried either later in the federal action or in the state court. In reply, libellant’s counsel stated his willingness to accept an adequate tender, but asserted that the tender was never accompanied by the production of the money and was always conditioned by a demand for a full release of the mortgage. There ensued a long discussion among court and counsel thoroughly exploring issues which respondent would now reopen. As it turned out, the parties had little or no dispute as to the amount to be covered by the tender. In its libel, libellant had claimed the sum of $73,766.66, which included $60,700 indebtedness, interest, and attorneys’ fees, the latter set at $10,000. The amount offered by respondent, and which in fact became the basis of settlement, $69,491.56, was upon the same basis, with the single modification of a reduction of the attorneys’ fees by one-half.
On the other hand, the real dispute at this time was as to the form and circumstances under which the tender should be made, in the light of its possible legal effect upon the issues in litigation between the parties. Respondent repeatedly sought an agreement for acceptance of the tender and complete release of the mortgage security, together with a reservation of all its asserted rights to be tried out later in the accounting between the parties. This libellant resisted,making the formal objection that there had been no actual or unconditional tender of the money and explaining further that acceptance of anything but an unconditional tender would prejudice it from asserting what it felt to be its full rights on an accounting. It had already served notice of an intention to amend its libel to claim approximately $25,000 more asserted to be due on further installment notes; and it said that the results of a full accounting might well be not a reduction, but a substantial increase, of the claim. During the course of the hearing the judge also explored the possibility of a bond or deposit of the money as security. Nevertheless respondent continued to assert its position that any security furnished should be a complete substitute for the vessels, though with all its rights reserved; and libellant stood on its contention that any such security, not offered as payment of the indebtedness,, should cover also the additional amount it was prepared to claim. It appeared, however, that respondent was prepared to obtain the money represented by its offer from a bank whose counsel was in attendance at the hearing, the money to be advanced on release of the mortgage, thus making the vessels available as security to-the bank.
[15]*15The court adjourned the discussion over the noon recess in order to afford the parties an opportunity for adjustment. But since that did not occur, the court accepted the inevitable consequence for which the libellant was asking, namely that the trial must proceed. Respondent objected that a trial would be a long drawn-out affair, but was disputed by libellant’s counsel, who wondered “if it would take more than a half hour. The libellant’s case will go in in ten minutes.” But the court directed the trial to proceed, and the libellant proceeded with its testimony, with the original mortgage received in evidence as Libellant’s Exhibit 1.
At that point respondent’s counsel requested a recess for a conference with his client. Then after a short recess he made an unconditional tender, which libellant agreed to accept as such, giving satisfaction pieces on receipt of the money. The case was then adjourned until the next morning in order that the money might be produced at the Customs House, where the mortgage had been recorded and the satisfactions were to be recorded. When the hearing was resumed the next morning, respondent’s counsel stated that they were ready “to have your Honor sign a decree under our tender of yesterday afternoon.” A colloquy disclosed that satisfactions were being held in the Customs House, together with the mortgage, to await a consent decree, after which the money would be paid and the releases given. Respondent’s counsel thus specifically requested the signing of the decree, which, indeed, carries the endorsement of his consent, as well as that of the proctors for the libellant. This decree orders recovery of the sum of $69,491.56 “from the barges attached herein and the respondent” and release of the attached vessels upon payment of this amount and of all clerk’s and marshal’s fees. Payment was then made, the satisfactions were given, and the vessels were released.
When the complaint or petition was filed less than a month later, it repeated the contentions of respondent’s answer as to the joint venture in essentially the same language. Then it alleged duress on the part of libellant, in that the latter, knowing of respondent’s financial needs and the necessity of keeping the boats in operation, particularly because of important pending contracts, forced respondent to pay the sum stated to secure the release of vessels reasonably worth in excess of $250,000. It should be noted that respondent does not seriously criticize the original institution of the foreclosure action. It could hardly do so in view of the exclusive nature of the remedy in admiralty to enforce a preferred ship mortgage. Certainly realization upon the security of such a mortgage cannot be defeated by the mere device of institution of a state court action covering somewhat the same ground.4 The claim of duress is, however, for the pressure exerted by libellant to have the hearing proceed until and unless the money were paid. That is the sum and substance of the case. It should be noted that the court never did get to the questions of appointing a receiver or a special master or of granting any of the special relief requested in respondent’s answer. We do not now know how much of this might have been granted had the hearing proceeded. Respondent finds something coercive in libellant’s reference to its further claim of approximately $25,000; but there seems nothing illegal or improper in a statement by libellant of its utmost claims to the judge. Certain general allegations that the libellant was attempting to stir up other litigation against respondent are removed from this case by our previous holding as to the restrictions of admiralty jurisdiction. Hence we have the single bare point whether libellant’s action in pressing the libel to trial before Judge Byers until respondent actually produced and paid the money unconditionally was such “economic duress” as to justify the almost immediate upsetting of the formal court decree.
Here the main gist of respond[16]*16ent’s argument is that libellant was acting oppressively in asking unconditioned payment and refusing to accept the money in place of the vessels while the issue as to the fact or amount of indebtedness was being litigated later. Respondent cites and relies upon the well-established principle that security given to release a vessel arrested in admiralty proceedings in rem takes the place of the res for all purposes and hence does more than merely restore possession of the vessels. United States v. Ames, 99 U.S. 35, 25 L.Ed. 295; The Susana, 4 Cir., 2 F.2d 410; The Fred M. Lawrence, 2 Cir., 94 F. 1017, 1018; J. K. Welding Co. v. Gotham Marine Corp., D.C.S.D.N.Y., 47 F.2d 332; The Morning Star, D.C.E.D.N.Y., 5 F.Supp. 502 ; 2 Benedict on Admiralty, 6th Ed. 1940, § 378; 25 Col. L.Rev. 665. How far this principle is applicable to proceedings under the Ship Mortgage Act has not been determined, though we recognize the force of respondent’s legal contention.5 Even so, we do not see how it helps respondent here. If sound, it meant that the vessels were available as security for a bank loan to provide either a deposit or payment. That would leave as the only proper dispute between them at this time the amount of the security in ths light of libellant’s proposal to amend its demand if the amount due was to be later litigated. How far in addition libellant was prepared to controvert respondent’s claim of law never became clear; for the issue remained academic in the absence of any actual tender of security by respondent. Libellant’s continued emphasis upon the amount of the bond and a not wholly unnatural failure to distinguish in the discussion between release of the security and release of the debt might indeed suggest that it was not prepared to refuse a substitution of fully adequate security. But the important point is that libellant at most asked only for its asserted legal rights or alternatively for the immediate hearing which the court stood ready to give. Libellant is hardly to be charged with duress for merely stating its claims in the presence of a court ready to afford complete protection against injustice or overreaching. Nor is the court to be charged with a callous disregard of the respondent’s rights in its quite patient exploration of the alternatives of bond, deposit, payment, trial, followed by its direction for the hearing to proceed as the only way of settling the conflicting claims and ultimately by its acceptance at face value of the respondent’s settlement and request for a final decree upon consent.
It is therefore quite clear that this was no real case of duress. Rather, it was upon the part of the respondent a choice of strategy or tactics. Admittedly and expressly the parties were determining their immediate actions at the hearing in the light of the effect of such actions upon the pending accounting wherever that might be held. Faced with the alternative of immediate settlement of the accounts, respondent deliberately chose to procure a postponement by meeting the legal conditions set by libellant. Having chosen this strategy, respondent should abide by it and not try to overturn, within a month after rendition, a formal court decree which it itself had sought for the purposes it had immediately in view. How far its strategy may permanently prejudice or reduce its further claims in its pending state court action is not for us to attempt to say. There involved are other debts and other mortgages, as well as the whole series of transactions long antedating this present mortgage. It is obviously the task of that court, if the issues go to trial, to disentangle and settle all the other conflicts which divide the parties.
Nevertheless on this appeal respondent asks us to discount the history of the case as thus clearly disclosed by applying [17]*17the well-known and useful rule that upon dismissal of a pleading upon motion all intendments are taken in favor of the pleader, in the endeavor to support the allegations so far as possible. The difficulty with this is that it is controlled by a presently more important, apposite, and well-settled principle of law that the petition must be read as though it included the facts of which the court takes judicial notice, even though these may be contrary to some of the allegations. Jones v. United States, 137 U.S. 202, 214-217,11 S.Ct. 80, 34 L.Ed. 691; Greeson v. Imperial Irr. Dist., 9 Cir., 59 F.2d 529, 530; Verde River Irr. & Power Dist. v. Salt River Valley Water Users’ Ass’n, 9 Cir., 94 F.2d 936, 938; Walsh v. Trustees of New York & Brooklyn Bridge, 96 N.Y. 427, 438; Masline v. New York, N. H. & H. R. Co., 95 Conn. 702, 111 A. 639; Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 273; cases collected Clark, Code Pleading, 2d Ed.1947, 251. Indeed there would be little reason to the rule compelling the judge to take judicial notice of known facts (Morgan, op. cit. supra; cf A.L.I., Model , Code of Evidence, 1942, Rules 801, 803; 9 Wigmore, Evidence, 3d Ed. 1940, § 2583) if he must also accept contrary allegations until disproved by formal proof.
Here it is true respondent’s petition contains several allegations which we do accept of libellant’s intent and desire to take advantage of respondent’s known financial stringency. But on the crucial issue whether this was illegal or improper, the allegations become vague and hesitant. Thus on the vital point as to the amount due on the mortgage there are such statements as a lack of “any or adequate” consideration for the original indebtedness; but even this indefinite charge is explained elsewhere to mean adequate consideration “beyond” various listed matters such as the original debt to a third-party mortgagee, the reasonable value of repairs, supplies, materials, labor, charter hire of and for the barges and tugs, and accrued interest. So, as to the amount due at the time of institution of the action, respondent alleges “upon information and belief” in a conclusory paragraph near the end of the petition that it did not owe libellant, but that the latter owed it, the “exact amount” being unknown for reasons stated in an earlier paragraph. But these reasons turn out to be its lack of knowledge of the accounts and transactions; that this lack was caused by libellant’s agent does not change the obvious fact that the actual state' of the account is at present unknown. When these allegations are read in the light of statements by counsel at the hearing we can see that this is the case as to both parties and there is a real dispute between them as to the debt. Unless we are to indulge in the melodramatic assumption (not even claimed) that respondent’s counsel was then forced not even to silence, but to a concession of what he knew to be false, the conclusion that there was a properly triable issue is unavoidable.
It is also true that beyond this the petition makes much of the charges that respondent was forced hastily into what should have been a long trial before a Special Master and that libellant refused to accept either security, stipulation for value, or a tender and deliver “proper satisfactions of the mortgage.” As to the first charge, it is of course true that libellant pressed for immediate trial. As we have seen, however, there was nothing improper in this, and it was the indicated and desirable course, as the judge held. Respondent could not claim, as of right, the frowned-upon step of a reference (McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992; Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481; Federal Rules of Civil Procedure, rule 53(b), 28 U.S.C.A. following Section 723c; Equity Rule 59, 28 U.S.C.A. § 723 Appendix); there was real doubt as to how lengthy a trial was necessary to settle the immediate matter before the court; and counsel had the judge’s assurance that he would not be forced in producing his evidence. As to the second charge, respondent actually never made tender of bond, payment, or other security until the ultimate tender of payment and its acceptance. Because of this and of the uncertainty as to the law, libellant was never put to a definite choice of legal platform. The further charge that its proctors misled the court as to the law is therefore manifestly absurd. Actually libellant’s counsel appear to [18]*18have shown a commendable desire throughout to seek and abide by judicial settlement of the issues; it was respondent who held back.6
Against this background the issues of law on this appeal seem to us both simple and clear. The Restatement of Judgments sets forth the comparatively limited grounds upon which a judgment within the court’s jurisdiction and authority may be set aside. See c. 5 in general, and note § 126 for the many instances where such relief is to be denied. Of course duress preventing a party from contesting a fraudulent claim or defense is an appropriate ground for relief, § 121; but the examples cited are revealing of the kind had in mind by the restaters, as in Illustration 6, p. 592, where “A threatens to kidnap B’s child if B defends the action.” Further, the granting of relief is subject to the general rules of equity, §§ 127-130, and one ground of refusal is that of “contributory fault,” § 129, where before or after the judgment the complainant or the person representing him “failed to use care to protect his interests,” or “after ascertaining the facts the complainant failed promptly to seek redress.” Here there was more than a mere failure to seek court protection; there was a deliberate choice to avoid it when the doors of justice were already open and the parties were within the temple. Such a voluntary payment cannot be duress. Radich v. Hutchins, 95 U.S. 210, 213, 24 L.Ed. 409; Brown v. Swann, 10 Pet. 497, 505, 35 U.S. 497, 505, 9 L.Ed. 508; Brown v. Buena Vista County, 95 U.S. 157, 24 L.Ed. 422; Knox County, Mo. v. Harshman, 133 U.S. 152, 154, 10 S. Ct. 257, 33 L.Ed. 586; Pickford v. Talbott, 225 U.S. 651, 661, 32 S.Ct. 687, 56 L.Ed. 1240; Chase Nat. Bank v. City of Norwalk, 291 U.S. 431, 440, 441, 54 S.Ct. 475, 78 L.Ed. 894.7
Respondent relies rather generally on cases of abuse of civil process by a litigant to secure an unjustified end. While the courts have shown a natural hesitancy to act broadly, for fear of depriving a litigant of those rights which the law accords him, yet there is undoubtedly a field for the operation of these principles, as acutely developed by Professor Dawson in his articles, “Duress Through Civil Litigation,” 45 Mich.L.Rev. 571, 679. He is there dealing not with relief from judgments already rendered, but with a quasi-contractual remedy, which would not be a part of admiralty jurisdiction under our previous ruling. Reference may be made to these articles, however, for the very limitations they so pointedly suggest, such as that recovery should be only on the basis of unjust enrichment, pp. 577, 578, and that the gist of the duress is the preventing of ■ resort to the protective activities of a court, p. 591 et seq., p. 685 et seq.8 Thus, stress is laid [19]*19throughout the articles on the lack of “opportunity to litigate.” We have been cited to no case, and have discovered none, where relief is accorded a suitor who runs away from court, instead of toward it.
But reference to cases involving illegal or excessive attachments or other recognized abuses of process does have this relevancy that it highlights the sharp difference between them and the present case. Here we have no illegal or excessive attachment; we have only the enforcement of a mortgage in the way provided by law. The claimed abuse is that libellant refused to release the mortgage upon respondent’s offer of payment. This was not a legal tender, and refusal of it in its tentative form or otherwise would not be an abuse of process in the light of the dispute actually existing as to the amount due. But further, libellant’s counsel made clear the basis of his decision, leaving as the real crux of the case his one act of refusing the offer while it remained conditional, in order to retain the opportunity to prove the greater amount at the projected later trial. How really burdensome this claim could ever be is none too clear; apparently we are asked to assume that the bank, prepared to loan $70,000 against vessels worth more than $250,000, would advance no more. Even making this assumption we do not see how the statement of an amount as due, coupled with an expressed willingness for immediate trial as to its validity, can be a misuse of the agencies of justice. Unlike the usual precedents, we have here no attempt to avoid or prevent the effective operation of the court’s protective shield. On the contrary, libellant did what it could, against respondent’s opposition, to set the court processes speedily in motion. Small wonder is it, therefore, that respondent can cite no authority to support its extreme position.
Respondent has rested its appeal to us upon its claim of duress, rather than upon a claim of discretionary power in the court to revise a decree within the term. The reason is, of course, obvious. The district judge directly familiar with the facts had refused to act after a very careful re-examination of the entire case; and his decision, so far as it was discretionary, was final. The I. F. Chapman, 1 Cir., 241 F. 836, 839, certiorari denied 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529. Further, in our reading of the record, this was the only appropriate result. A contrary ruling would have given us concern in view of the fact that this was a decree arrived at by agreement of the parties (McArthur v. Thompson, supra, 140 Neb. 408, 299 N.W. 519, 139 A.L.R. 413), the admonition against “too ready unravelling of judgments” expressed by this court in the earlier opinion (W. E. Hedger Transp. Corp. v. Ira S. Bushey & Sons, supra, 155 F.2d 321, 324), and the well-settled rule that an error of judgment of counsel is inadequate justification for such unravelling. Mr. Justice Story in Baker v. Whiting, C. C. Me., Fed.Cas.No. 786; Merchants’ Banking Co. v. Cargo of the Afton, 2 Cir., 134 F. 727, 731, certiorari denied 196 U.S. 639, 25 S.Ct. 794, 49 L.Ed. 630.
Since all the facts are now fully known, there is no occasion for a trial or for the [20]*20taking of testimony. It is as much the duty of the court to protect litigants from long and utterly useless litigation as it is to afford an opportunity for trial to those deserving it. And while a court will be astute to prevent misuse of its processes, it can hardly be expected to look with favor upon the device of obtaining postponement of effective trial by seeking a decree to be repudiated after its immediate objective has been obtained. Obviously the respondent has no such extrinsic facts to present as the Restatement refers to (such as threat of kidnapping a party’s child) and has not suggested any addition it could make to its petition. The facts are all shown by the record. Accepting the motives and intent ascribed to libellant in the petition we can still find nothing illegal in its acts or erroneous in the court’s grant of respondent’s request for the consent decree and later refusal to vacate it.
Affirmed.