RICHARDSON, Chief Judge.
■ This appeal is hy a garnishee against whom a judgment was entered on June 17, 1942, for failure to answer interrogatories or to respond to a writ of garnishment served personally on June 6, 1942.
The judgment was authorized by and .entered pursuant to Title 16, Section 323, D.C.Code (1940 Edition) in part as follows: “If the garnishee shall have failed to answer the interrogatories served on him, or to appear and show cause why a judgment of condemnation should not be entered, judgment shall be entered against him for the whole amount of the plaintiffs claim, and costs, and execution had thereon. (Mar. 3, 1901, 31 Stat. 1263, ch. 854, § 467.)”
A motion to vacate the judgment was filed by the garnishee on June 29, 1942, within the term at which the judgment was entered. The motion was later amended. In the motion and the amendment, neither of which was verified or supported hy affidavit, garnishee claimed that his failure to answer was due to a misunderstanding on his part and to advice of counsel that the writ did not have to be answered. The trial court denied the motion to vacate and the appeal was taken from the order denying the motion. No appeal was taken from the judgment of June 17, 1942, against the garnishee.
The effect of this motion under our Rule 27(d)1 was to postpone the running of the time for appeal until final action on the motion.
A preliminary question is whether we may entertain the appeal from the order denying the motion. In the absence of objection a duty is nevertheless imposed on the court to notice an excess of jurisdiction and to limit review to appealable orders or judgments.2
In International Bank v. Securities Corporation, 59 App.D.C. 72, 32 F.2d 968, it was held that “appeal will not lie from an order denying a motion to vacate a judgment”.
In that case, as here, the garnishment was served personally. There the garnishee answered, but failed to answer two of the three interrogatories. A default judgment was entered against it. Two weeks later an attachment was issued on this judgment. The garnishee immediately moved to vacate the judgment, supporting its motion by affidavits stating that it was not indebted to the defendant in the case and that its officer who-signed the return had inadvertently failed to answer the first two interrogatories, thinking that his answer to the last question included the two preceding. The motion was filed during the term at which the judgment was entered. From the order denying the motion to vacate, the garnishee-appealed. The decision would seem to be conclusive of the present appeal.
This case has been cited ar^d followed in cases in the Seventh and Ninth Circuit Courts of Appeals.3 In one of these cases, Smith v. United States ex rel. Gorlo, the court commented on the decision in Stevirmac Oil & Gas Co. v. Dittman, 245 U.S. 210, 38 S.Ct. 116, 62 L.Ed. 248, construing it as applicable only to motions to vacate filed after the term at which the judgment was entered. The same view was expressed by Judge Learned Hand in Board of Supervisors of Rockland County v. Knickerbocker Ice Co., 2 Cir., 80 F.2d 248.
In Benson v. United States, 9 Cir., 93 F. 2d 749, 751, where the legal situation was. similar to the present case, the court, citing the Stevirmac case, supra, without comment, said:
“It is conclusively settled that a ruling upon a motion to vacate a judgment, made in the same term and the same cause in which the challenged judgment is entered, is not an appealable order. Connor v. Peugh’s Lessee, 18 How. 394, 395, 15 L.Ed. 432; Phillips v. Negley, 117 U.S. 665, 6 S. Ct. 901, 29 L.Ed. 1013; Hume v. Bowie, 148 U.S. 245, 255, 13 S.Ct. 582, 37 L.Ed. 438; Stevirmac Oil Co. v. Dittman, 245 U.S. 210, [695]*695214, 38 S.Ct. 116, 62 L.Ed. 248; Smith v. United States, 7 Cir., 52 F.2d 848, and cases cited; Board of Supervisors v. Knickerbocker Ice Co., 2 Cir., 80 F.2d 248, 250; Republic Supply Co. v. Richfield Oil Co., 9 Cir., 74 F.2d 909, 910, and cases cited.
“Whatever hardship or injustice, if any, there may be in the denial of the motion, we have no power to consider in the attempted appeal from the motion to vacate the judgment.”
This decision was cited and followed in the same circuit in Jackson v. Heiser, 111 F.2d 310, and Hicks v. Bekins M. & S. Co., 115 F.2d 406.
The ruling that an order denying a motion to vacate a judgment is not appealable has been adhered to in our courts in an extended series of opinions.
In Tubman v. Baltimore & O. R. Co., 1902, 20 App.D.C. 541, the court dismissed the appeal from an order denying a motion to vacate a judgment of dismissal for failure to prosecute.
In Swenk v. Nicholls, 1912, 39 App.D.C. 350, the court dismissed an appeal from a motion to vacate a judgment by default.
In Dante v. Bagby, 1913, 39 App.D.C. 516, the motion was to vacate a judgment entered nunc pro tunc after the death of the original defendant.
The court said: “It will be observed that the appeal was taken from the order denying the motion to vacate the judgment. Appeal does not lie from such an order. The motion is addressed to the discretion of the court, and is intended to furnish the court an opportunity to correct its own error.”
In Doyle v. District of Columbia, 1916, 45 App.D.C. 90, where a verdict for the defendant had been directed at the trial the court quoted the above statement from Dante v. Bagby, supra, and said: “That an appeal must be taken from the judgment, and not from the order denying the motion to vacate the judgment, is settled practice in this court.”
The ruling in International Bank v. Securities Corporation, 1929, supra, has been stated.
It is noted that in each of these cases the motion did not attack the validity of the judgment for lack of jurisdiction but sought relief, usually from the movant’s default in appearing or pleading to an action to which he was a party before the court, and always in a case within the court’s jurisdiction.
In such cases the motion must be made within the term or other fixed time limited by rule of court; it must be made while the court retains jurisdiction over its judgment; it is addressed to the discretion of the court and is not reviewable except for abuse of discretion.
But where the motion asserts the invalidity of the judgment, as where it has been entered without sufficient service to bring a defendant or garnishee into court, the attack on the judgment has been regarded as an independent proceeding.4 No limitation of time is recognized. The matter is one of legal right, and to be determined by fixed rules of law. No element of discretion is involved.
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RICHARDSON, Chief Judge.
■ This appeal is hy a garnishee against whom a judgment was entered on June 17, 1942, for failure to answer interrogatories or to respond to a writ of garnishment served personally on June 6, 1942.
The judgment was authorized by and .entered pursuant to Title 16, Section 323, D.C.Code (1940 Edition) in part as follows: “If the garnishee shall have failed to answer the interrogatories served on him, or to appear and show cause why a judgment of condemnation should not be entered, judgment shall be entered against him for the whole amount of the plaintiffs claim, and costs, and execution had thereon. (Mar. 3, 1901, 31 Stat. 1263, ch. 854, § 467.)”
A motion to vacate the judgment was filed by the garnishee on June 29, 1942, within the term at which the judgment was entered. The motion was later amended. In the motion and the amendment, neither of which was verified or supported hy affidavit, garnishee claimed that his failure to answer was due to a misunderstanding on his part and to advice of counsel that the writ did not have to be answered. The trial court denied the motion to vacate and the appeal was taken from the order denying the motion. No appeal was taken from the judgment of June 17, 1942, against the garnishee.
The effect of this motion under our Rule 27(d)1 was to postpone the running of the time for appeal until final action on the motion.
A preliminary question is whether we may entertain the appeal from the order denying the motion. In the absence of objection a duty is nevertheless imposed on the court to notice an excess of jurisdiction and to limit review to appealable orders or judgments.2
In International Bank v. Securities Corporation, 59 App.D.C. 72, 32 F.2d 968, it was held that “appeal will not lie from an order denying a motion to vacate a judgment”.
In that case, as here, the garnishment was served personally. There the garnishee answered, but failed to answer two of the three interrogatories. A default judgment was entered against it. Two weeks later an attachment was issued on this judgment. The garnishee immediately moved to vacate the judgment, supporting its motion by affidavits stating that it was not indebted to the defendant in the case and that its officer who-signed the return had inadvertently failed to answer the first two interrogatories, thinking that his answer to the last question included the two preceding. The motion was filed during the term at which the judgment was entered. From the order denying the motion to vacate, the garnishee-appealed. The decision would seem to be conclusive of the present appeal.
This case has been cited ar^d followed in cases in the Seventh and Ninth Circuit Courts of Appeals.3 In one of these cases, Smith v. United States ex rel. Gorlo, the court commented on the decision in Stevirmac Oil & Gas Co. v. Dittman, 245 U.S. 210, 38 S.Ct. 116, 62 L.Ed. 248, construing it as applicable only to motions to vacate filed after the term at which the judgment was entered. The same view was expressed by Judge Learned Hand in Board of Supervisors of Rockland County v. Knickerbocker Ice Co., 2 Cir., 80 F.2d 248.
In Benson v. United States, 9 Cir., 93 F. 2d 749, 751, where the legal situation was. similar to the present case, the court, citing the Stevirmac case, supra, without comment, said:
“It is conclusively settled that a ruling upon a motion to vacate a judgment, made in the same term and the same cause in which the challenged judgment is entered, is not an appealable order. Connor v. Peugh’s Lessee, 18 How. 394, 395, 15 L.Ed. 432; Phillips v. Negley, 117 U.S. 665, 6 S. Ct. 901, 29 L.Ed. 1013; Hume v. Bowie, 148 U.S. 245, 255, 13 S.Ct. 582, 37 L.Ed. 438; Stevirmac Oil Co. v. Dittman, 245 U.S. 210, [695]*695214, 38 S.Ct. 116, 62 L.Ed. 248; Smith v. United States, 7 Cir., 52 F.2d 848, and cases cited; Board of Supervisors v. Knickerbocker Ice Co., 2 Cir., 80 F.2d 248, 250; Republic Supply Co. v. Richfield Oil Co., 9 Cir., 74 F.2d 909, 910, and cases cited.
“Whatever hardship or injustice, if any, there may be in the denial of the motion, we have no power to consider in the attempted appeal from the motion to vacate the judgment.”
This decision was cited and followed in the same circuit in Jackson v. Heiser, 111 F.2d 310, and Hicks v. Bekins M. & S. Co., 115 F.2d 406.
The ruling that an order denying a motion to vacate a judgment is not appealable has been adhered to in our courts in an extended series of opinions.
In Tubman v. Baltimore & O. R. Co., 1902, 20 App.D.C. 541, the court dismissed the appeal from an order denying a motion to vacate a judgment of dismissal for failure to prosecute.
In Swenk v. Nicholls, 1912, 39 App.D.C. 350, the court dismissed an appeal from a motion to vacate a judgment by default.
In Dante v. Bagby, 1913, 39 App.D.C. 516, the motion was to vacate a judgment entered nunc pro tunc after the death of the original defendant.
The court said: “It will be observed that the appeal was taken from the order denying the motion to vacate the judgment. Appeal does not lie from such an order. The motion is addressed to the discretion of the court, and is intended to furnish the court an opportunity to correct its own error.”
In Doyle v. District of Columbia, 1916, 45 App.D.C. 90, where a verdict for the defendant had been directed at the trial the court quoted the above statement from Dante v. Bagby, supra, and said: “That an appeal must be taken from the judgment, and not from the order denying the motion to vacate the judgment, is settled practice in this court.”
The ruling in International Bank v. Securities Corporation, 1929, supra, has been stated.
It is noted that in each of these cases the motion did not attack the validity of the judgment for lack of jurisdiction but sought relief, usually from the movant’s default in appearing or pleading to an action to which he was a party before the court, and always in a case within the court’s jurisdiction.
In such cases the motion must be made within the term or other fixed time limited by rule of court; it must be made while the court retains jurisdiction over its judgment; it is addressed to the discretion of the court and is not reviewable except for abuse of discretion.
But where the motion asserts the invalidity of the judgment, as where it has been entered without sufficient service to bring a defendant or garnishee into court, the attack on the judgment has been regarded as an independent proceeding.4 No limitation of time is recognized. The matter is one of legal right, and to be determined by fixed rules of law. No element of discretion is involved.
In Consolidated Radio Artists, Inc., v. Washington Section, etc., 1939, 70 App.D.C. 262, 105 F.2d 785; Wise v. Herzog, 1940, 72 App.D.C. 335, 114 F.2d 486; and Encyclopaedia Britannica, Inc., v. Shannon, U.S.App.D.C., January 25, 1943, 133 F.2d 397, the United States Court of Appeals for this district has entertained appeals from orders entered on motions to vacate judgments, in each case involving solely the validity of the service oh the judgment debtor. The prior decisions of the same court cited here were noted but not overruled. We, therefore, interpret the last mentioned decisions as applicable only to appeals when the jurisdiction of the court to enter the judgment is assailed.
We hold that the order in this case was not an appealable judgment or order.
However, we have carefully examined the record in this case and in view of the importance of the questions of practice involved feel that we should state that we find no basis for the claim that the denial of the motion by the trial court was an abuse of discretion.
The motion was based on two grounds: (1) A misunderstanding on the part of the garnishee that he was required to answer the garnishment in ten days after service; and (2) advice of counsel that the garnishment did not have to be answered until after the trial of another and independent suit.
Both alleged grounds were based on facts not appearing of record, yet neither the [696]*696motion nor its amendment were verified or accompanied by affidavit. So far as the record discloses no evidence was offered to support these allegations. This alone would have justified the denial of the motion.
In Bush v. Bush, 61 App.D.C. 357, 63 F. 2d 134, 135, after stating that an application to vacate a judgment “is addressed to the sound legal discretion of the trial court” and that “the party in default should show good cause before the default should be set aside” the court commented — “The failure to file an affidavit of his client is significant.” There an affidavit of counsel was filed to support the motion.
The garnishment on which the judgment was entered was the third of three served on the appellant. The first, served April 30, was answered May 27, seventeen days late. The second, served May 14, was never answered. The answer to the third, due June 16, was not tendered until June 29, when it was filed with the motion to vacate the judgment of June 17. Garnishee attempted to excuse his failure to answer the third garnishment but offered no explanation of his delay in answering the first or of his failure to answer the second.
In his motion he asserts that the defendant was not employed by him after the garnishment was served — June 6th. Yet in the sworn answer to interrogatories tendered with the motion he admits that the defendant was employed by him through June 9th.
On the face of the writ is an official notice requiring the garnishee to appear and show cause within ten days after service. On the reverse side is a notice, printed above the interrogatories, that they must be answered under oath within ten days after service, and that upon neglect or refusal so to do judgment may be entered for the amount of the plaintiff's claim.
Here there was no question that garnishee received all three writs. He used the copy of the first in making the return filed May 27, thirteen days after the second writ had been served personally on him by the marshal. The third was served personally. In considering the merits of his application to be relieved of his default his conduct throughout was pertinent and material for the court to consider in determining whether the delay in answering the third writ was due to inadvertence or indifference.
The motion to vacate was addressed to the discretion of the trial court.5 We cannot reverse unless its denial was an abuse of that discretion, which is not shown in the present case.
Dismissed.