TRIEBER, District Judge
(after stating the facts as above). We will dispose of the questions in the order in which they were assigned by appellant in the assignment of error.
[843]*843[ 1 ] The first question to be determined is: Is the decree appealed from void, for the reason that the hearing was had in the state of Kansas, although the decree was entered in the proper District Court, while in session?
The acts of Congress treat the divisions of a district, unless otherwise provided, as separate districts for jurisdictional purposes. Section 53, Judicial Code (Comp. St. § 1035); Bankruptcy Act, secs. 18f and 18g (Comp. St. § 9602). It has been held that an order granting a new trial, by the 'District Judge, while in another division than where the trial and conviction were had, was within his jurisdiction. Abbott v. Brown, 241 U. S. 606, 36 Sup. Ct. 689, 60 L. Ed. 1199. The facts in that case were: Abbott had been indicted in the District Court for the Southern District of Florida, held at Tarnpa, Ela., for a violation of the Penal Code (Comp. St. §§ 10165-10519); that being the place for the court of one of the six divisions of that district. In the month of March, 1912, he was tried on the indictment, found guilty, and a sentence of imprisonment imposed. May 24, 1912, he filed a motion for new trial. On June 26, 1912, the motion was heard by Judge Locke, at Jacksonville, in the same district, but in another division, and the motion granted. The order of Judge Locke, granting the new trial was forwarded to and entered by the clerk at Tampa, while the judge was absent, under a rule of the court requiring the court to be held open. He was again tried at Tampa on February 11, 1913, when the jury disagreed. On March 13, 1914,■ he was again tried, and the jury returned a verdict of not guilty. In February, 1915, he was indicted for subornation of perjury. He demurred to this indictment, and moved to quash it, upon the ground that Judge Locke had no jurisdiction to grant the new trial. One of the grounds relied on was that the new trial had been granted out of the division in which the cause was pending and the order entered while that court was not in session; the judge not being present. The demurrer and motion to quash were heard by the then presiding judge, the successor of Judge Locke, who sustained the demurrer and quashed the indictment, upon the ground that Judge Locke had no power or authority, after the adjournment order of March 12, 1912, to vacate or set aside the sentence passed upon the appellant on that date, and when out of the division of the district. Thereupon the United States Attorney procured a commitment to be issued on the original judgment of conviction, and while held in custody under this commitment the appellant applied for a writ of habeas corpus. The trial judge discharged the writ, whereupon the cause was appealed to the Supreme Court. The judgment of the lower court, refusing to discharge the petitioner on habeas corpus, was reversed, the court holding that—
“The judgment of conviction having been vacated by an order of the court made within the scope of its power and jurisdiction, there remains no legal foundation for the commitment issued on March 20, 1915, and the appellant is entitled to be discharged from custody.”
In United States v. Louisville & P. Canal Co., Fed. Cas. No. 15,633, Mr. Justice Miller, sitting as Circuit Justice, held that, notwithstanding section 719, Rev. St. (re-enacted as section 264 of the Judicial Code [844]*844[Comp. St. § 1241]),'provided, “But no Justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot he heard by the Circuit Judge of the circuit or the District Judge of the district,” when the District Judge of the district and the Circuit Judge for the circuit and the Justice of the Supreme Court allotted to that circuit are absent from the district and circuit, any Justice of the Supreme Court has jurisdiction, at any place in the United States, to hear and grant an application for an injunction. In Searles v. Jacksonville, P. & M. R. R, 2 Woods, 621, Fed. Cas. No. 12,586, Mr. Justice Bradley, sitting as Circuit Justice, held that, notwithstanding the provisions of section 719, Rev. St., a Circuit Justice may grant a temporary injunction when the District and Circuit Judges of the district and circuit are disqualified or out of the district and circuit, at ány place where he may be, although out of the circuit, and against the objections 'of the defendants. See, also, United States v. Finnell, 185 U. S. 236, 22 Sup. Ct. 633, 46 L. Ed. 890.
Aside from this, the order correcting the decree made by Judge Pollock was entered by Judge Dyer, the regular presiding judge of tire court in which the original decree had been rendered, thereby making it his decree, based on information from Judge Pollock, which was satisfactory to him.
It is also proper to state in this connection that, when the motion was first presented to Judge Pollock, at Kansas City, Kan., no objection to his hearing it in the state of Kansas was made by the solicitors for appellant. The first time this objection was made was when the hearing had been continued and was had at Wichita, Kan., the continuance having been granted at the request of the solicitors of the appellant, upon the ground that they had not had sufficient time to prepare for the hearing.
■ We are of the opinion that no error was committed in overruling the objection to the hearing of the motion by Judge Pollock in the state of Kansas.
[2, 3] 2. Did the court err in acting on the motion after the expiration of the term at which the decree sought to be modified was rendered ?
The only modification of the decree sought and granted was to expunge the findings of fact included in the decree, reflecting on appellees. They were not parties to that action, were not present at the hearing, and did not know of these findings until a few days before they filed their motions. They first learned of it by publication in a newspaper and within a few days thereafter filed their motions. They certainly cannot be said to have been guilty of a lack of diligence. Not having been parties to that action, they were not chargeable, with constructive notice of the contents of the decree. Findings of fact have no place in a decree in a national court. Rule 71 of the present Equity Rules (33 Sup. Ct. xxxviii), a re-enactment of rule 86 of the former Equity Rules, promulgated March 2, 1842, prescribed the form, for decrees, [845]*845and although it does not in express terms prohibit the inclusion of findings of fact in the decree, it does so by necessary implication. Only, if it is necessary to make the decree more clear and specific, is it proper to include findings of fact in the decree. Putnam v. Day, 89 U. S. (22 Wall.) 60, 22 L. Ed. 764; McClaskey v. Barr (C. C.) 48 Fed. 130. There was no necessity for that in this decree.
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TRIEBER, District Judge
(after stating the facts as above). We will dispose of the questions in the order in which they were assigned by appellant in the assignment of error.
[843]*843[ 1 ] The first question to be determined is: Is the decree appealed from void, for the reason that the hearing was had in the state of Kansas, although the decree was entered in the proper District Court, while in session?
The acts of Congress treat the divisions of a district, unless otherwise provided, as separate districts for jurisdictional purposes. Section 53, Judicial Code (Comp. St. § 1035); Bankruptcy Act, secs. 18f and 18g (Comp. St. § 9602). It has been held that an order granting a new trial, by the 'District Judge, while in another division than where the trial and conviction were had, was within his jurisdiction. Abbott v. Brown, 241 U. S. 606, 36 Sup. Ct. 689, 60 L. Ed. 1199. The facts in that case were: Abbott had been indicted in the District Court for the Southern District of Florida, held at Tarnpa, Ela., for a violation of the Penal Code (Comp. St. §§ 10165-10519); that being the place for the court of one of the six divisions of that district. In the month of March, 1912, he was tried on the indictment, found guilty, and a sentence of imprisonment imposed. May 24, 1912, he filed a motion for new trial. On June 26, 1912, the motion was heard by Judge Locke, at Jacksonville, in the same district, but in another division, and the motion granted. The order of Judge Locke, granting the new trial was forwarded to and entered by the clerk at Tampa, while the judge was absent, under a rule of the court requiring the court to be held open. He was again tried at Tampa on February 11, 1913, when the jury disagreed. On March 13, 1914,■ he was again tried, and the jury returned a verdict of not guilty. In February, 1915, he was indicted for subornation of perjury. He demurred to this indictment, and moved to quash it, upon the ground that Judge Locke had no jurisdiction to grant the new trial. One of the grounds relied on was that the new trial had been granted out of the division in which the cause was pending and the order entered while that court was not in session; the judge not being present. The demurrer and motion to quash were heard by the then presiding judge, the successor of Judge Locke, who sustained the demurrer and quashed the indictment, upon the ground that Judge Locke had no power or authority, after the adjournment order of March 12, 1912, to vacate or set aside the sentence passed upon the appellant on that date, and when out of the division of the district. Thereupon the United States Attorney procured a commitment to be issued on the original judgment of conviction, and while held in custody under this commitment the appellant applied for a writ of habeas corpus. The trial judge discharged the writ, whereupon the cause was appealed to the Supreme Court. The judgment of the lower court, refusing to discharge the petitioner on habeas corpus, was reversed, the court holding that—
“The judgment of conviction having been vacated by an order of the court made within the scope of its power and jurisdiction, there remains no legal foundation for the commitment issued on March 20, 1915, and the appellant is entitled to be discharged from custody.”
In United States v. Louisville & P. Canal Co., Fed. Cas. No. 15,633, Mr. Justice Miller, sitting as Circuit Justice, held that, notwithstanding section 719, Rev. St. (re-enacted as section 264 of the Judicial Code [844]*844[Comp. St. § 1241]),'provided, “But no Justice of the Supreme Court shall hear or allow any application for an injunction or restraining order in any cause pending in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot he heard by the Circuit Judge of the circuit or the District Judge of the district,” when the District Judge of the district and the Circuit Judge for the circuit and the Justice of the Supreme Court allotted to that circuit are absent from the district and circuit, any Justice of the Supreme Court has jurisdiction, at any place in the United States, to hear and grant an application for an injunction. In Searles v. Jacksonville, P. & M. R. R, 2 Woods, 621, Fed. Cas. No. 12,586, Mr. Justice Bradley, sitting as Circuit Justice, held that, notwithstanding the provisions of section 719, Rev. St., a Circuit Justice may grant a temporary injunction when the District and Circuit Judges of the district and circuit are disqualified or out of the district and circuit, at ány place where he may be, although out of the circuit, and against the objections 'of the defendants. See, also, United States v. Finnell, 185 U. S. 236, 22 Sup. Ct. 633, 46 L. Ed. 890.
Aside from this, the order correcting the decree made by Judge Pollock was entered by Judge Dyer, the regular presiding judge of tire court in which the original decree had been rendered, thereby making it his decree, based on information from Judge Pollock, which was satisfactory to him.
It is also proper to state in this connection that, when the motion was first presented to Judge Pollock, at Kansas City, Kan., no objection to his hearing it in the state of Kansas was made by the solicitors for appellant. The first time this objection was made was when the hearing had been continued and was had at Wichita, Kan., the continuance having been granted at the request of the solicitors of the appellant, upon the ground that they had not had sufficient time to prepare for the hearing.
■ We are of the opinion that no error was committed in overruling the objection to the hearing of the motion by Judge Pollock in the state of Kansas.
[2, 3] 2. Did the court err in acting on the motion after the expiration of the term at which the decree sought to be modified was rendered ?
The only modification of the decree sought and granted was to expunge the findings of fact included in the decree, reflecting on appellees. They were not parties to that action, were not present at the hearing, and did not know of these findings until a few days before they filed their motions. They first learned of it by publication in a newspaper and within a few days thereafter filed their motions. They certainly cannot be said to have been guilty of a lack of diligence. Not having been parties to that action, they were not chargeable, with constructive notice of the contents of the decree. Findings of fact have no place in a decree in a national court. Rule 71 of the present Equity Rules (33 Sup. Ct. xxxviii), a re-enactment of rule 86 of the former Equity Rules, promulgated March 2, 1842, prescribed the form, for decrees, [845]*845and although it does not in express terms prohibit the inclusion of findings of fact in the decree, it does so by necessary implication. Only, if it is necessary to make the decree more clear and specific, is it proper to include findings of fact in the decree. Putnam v. Day, 89 U. S. (22 Wall.) 60, 22 L. Ed. 764; McClaskey v. Barr (C. C.) 48 Fed. 130. There was no necessity for that in this decree.
The findings complained of in effect found appellees guilty of having will fully and knowingly sworn falsely, when they were neither parties to the action to set aside the order granting naturalization to the defendant in that case, nor present at the hearing, and therefore without 'an opportunity to defend themselves against so serious an imputation made in a solemn decree of a superior court.
The law is well settled that a court may correct its judgment after the expiration of the term at which it was rendered, if it was without jurisdiction, in excess of jurisdiction, erroneous on face of it, or improper by reason of doing injustice. Farmers’ & Merchants’ Bank v. Arizona Mutual S. & L. Ass’n, 220 Fed. 1, 135 C. C. A. 577; In re Dennett, 221 Fed. 350, 136 C. C. A. 422; Sweeney v. State, 35 Ark. 585.
A judgment upon a matter not within the pleadings and not litigated is void, being contrary to fundamental principles of justice. Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464; Coe v. Armour Fertilizer Works, 237 U. S. 413, 426, 35 Sup. Ct. 625, 59 L. Ed. 1027. “A decree has to be founded on the allegata as well as probata of the case.” Putnam v. Day, 89 U. S. (22 Wall.) 60, 66 (22 L. Ed. 764); Hendryx v. Perkins, 114 Fed. 801, 806, 52 C. C. A. 435. If the error in the decree is within the recollection of the judge who presided at the trial, the correction may be without notice. In re Wight, 134 U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865; Odell v. Reynolds, 70 Fed. 656, 17 C. C. A. 317; Groton Bridge & Mfg. Co. v. Clark Pressed Brick Co., 136 Fed. 27, 68 C. C. A. 557, affirming s. c. (C. C.) 126 Fed. 552.
The decree went beyond the relief asked by the plaintiff in that case, was highly prejudicial to appellees, who were not before the court, and it was the duty of the court to correct it in justice to the parties thus wronged. Brinkerhoff v. P'ranklin, 21 N. J. Eq. 334; Black on Judgments, § 161. In the decree appealed from, the learned trial judge again included his findings exonerating appellees from the imputations cast on them in the original decree. While this should not have been done, the learned trial judge, no doubt, felt that as the former decree contained these reflections on the petitioners, the corrected decree rectifying this error, should also appear on the records of the court.
We are of the opinion that, in neither decree should the findings of fact have been included, but in justice to the appellees it was proper for the court to make the findings it did and make these findings a part of the record of the cause, by placing them among the files of the cause, instead of including them in the decree.
[4] 3. 'Did the court err in admitting the depositions of witnesses read on behalf of appellees at the hearing?
[846]*846Whether in a proceeding of this nature depositions are to be. taken under section 863, Rev. St. (Comp. St. § 1472), in order to be admissible, or whether ex parte affidavits, with an opportunity to the adverse party to controvert them by counter affidavits, would be admissible, it is not necessary to determine in this case; nor do we deem it necessary to decide in this case whether the depositions of the witnesses residing within the Eastern District of Missouri, but more than 100 miles from Wichita, Kan., where the hearing was to be had, were improperly permitted to be read at the hearing, for, disregarding all the depositions except that of the appellee Sacks, there was substantial evidence to warrant the findings made by the court, and therefore their admission could not, by any possibility, be prejudicial to appellant.
The deposition of Mr. Sacks was properly admitted. He was neither a resident ,of the Eastern District of Missouri, ñor of the District of Kansas, and resided more than 100 miles from the court in which the proceedings were pending, and the place of the hearing. While the time given by the notice to take his deposition was rather short, still, as the hearing was set for September 26th, in order to have the deposition at the hearing, they had to be taken, riot later than September 24th. Mr. Sacks, who resided at Tulsa, Old., first learned of the contents of the decree on September 23d, while he was in St. Douis on some business. He immediately filed his petition to expunge so much of the decree as reflected on him, and served notice on the solicitors for appellant that his deposition would be taken the next day.
Counsel for appellant appeared before the commissiorier who was to take the depositions, objected to his taking them, and when the objections were overruled they refused to remain and cross-examine him. There is no reason why they could not have remained and cross-examined the witness, as the cross-examination would be limited to what was testified by the witness on direct examination. This deposition and the oral testimony of appellee Goldstein clearly warranted the findings made. Whether, in view of the 'fact that, the government is in no wise prejudiced by this decree, as all it asked in its suit against Glubok was to cancel the order granting him naturalization, it had a right to prosecute this appeal, we do not deem it necessary to decide, as no motion to dismiss was made by appellees.
Our conclusion is that the decree entered on'October 7, 1918, should be. modified, so as to include only the part of the decree, as set out hereinbefore, and omitting all findings of fact. ' The memorandum opinion prepared by Judge Pollock contains his findings of fact, and is a part of the record of the case, and it removes all imputations on appellees contained in the original decree.
As thus modified, the decree is affirmed.