Such order to show cause may issue on the motion of the Court or of any attorney of record. In Zadig v. Ætna Ins. Co., 42 F.2d 142, we took jurisdiction over the appeal only because the court, by refusing to reopen the judgment, had finally disposed of the cause; for an order vacating a judgment and setting down the cause for trial is interlocutory and not appealable. O'Brien v. Lashar, 266 F. 215 (C.C.A. 2); Mitchell v. Mason, 4 F.2d 705 (C.C.A. 5). Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013, established an exception to this when the term had expired, on the ground that in that case the motion was a "new proceeding," and the order concluded it, even though its content was interlocutory, viewed from its effect in the main cause. Thus, as the court said, appellate jurisdiction depended upon whether the District Court had itself had jurisdiction over the judgment.
Cook also contends he was prejudiced because the trial court did not enter an order vacating the trial date and because he did not receive notice of the hearing on AP's supplemental motion for summary judgment. We believe the trial court's failure to enter the order in question was a mere clerical oversight which did not affect the order's validity or prejudice Cook. See, e. g., Zadig v. Aetna Ins. Co., 42 F.2d 142 (2d Cir. 1930); 60 C.J.S. Motions Orders § 59(1) (1969). We also find it unnecessary to consider the notice issue.
Although a dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to res judicata principles, the order of dismissal, nevertheless, is a final order from which an appeal lies. See Zadig v. Aetna Ins. Co., 42 F.2d 142 (2d Cir. 1930). Cf. Blair v. Cleveland Twist Drill Co., 197 F.2d 842 (7th Cir. 1942); 6 Moore, Federal Practice ¶ 54.12[1].
But no question is made in the present motion of the court's jurisdiction over person or subject-matter at the time it entered its order confirming the plan. In Zadig v. Ætna Ins. Co., 2 Cir., 42 F.2d 142, this court considered an appeal from denial of a motion, made during the term, to vacate a judgment dismissing a cause for delay in its prosecution. The district judge had denied the motion to vacate because he believed he had no jurisdiction to entertain it.
The rule seems to have been long established that judicial, as well as quasi-judicial tribunals do not lose jurisdiction of a cause by its dismissal with a proviso authorizing its reinstatement. Welch v. Mandeville, 11 U.S. 152, 7 Cranch 152, 3 L.Ed. 299; Zadig v. Aetna Ins. Co., 2 Cir., 42 F.2d 142; United States v. Sixty-Five Cases of Glove Leather, D.C., 254 F. 211; Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 112 N.E. 350. In the Glove Leather case, the court, on page 214 of 254 F., said: "The docket entry of dismissal in the instant case as fully appears by the order pursuant to which made was not a `final' dismissal or judgment or disposition of the case, nor was it intended to be.
In the federal courts entry has been considered for most purposes as merely a ministerial duty of the clerk, though in some jurisdictions it is necessary in order to create a lien or start the running of time to appeal, but lack of entry does not affect the validity of the judgment. Fleischmann Const. Co. v. United States, 270 U.S. 349, 362, 46 S.Ct. 284, 70 L.Ed. 624; In re Ackermann, 82 F.2d 971 (C.C.A. 6); Zadig v. Ætna Insurance Co., 42 F.2d 142 (C.C.A. 2). The policy in this case was not a standard form policy, but a special contract similar in terms to a contract for marine insurance.
A judgment duly rendered is binding and enforceable between the parties although, due to neglect of the clerk, no formal entry has been made thereof. Sabine Hardwood Company v. West Lumber Co. (D.C. Tex.) 238 F. 611, 614, 616; Zadig v. Ætna Ins. Co. (C.C.A. 2) 42 F.2d 142, 143; United States v. Stoller (D.C. Wash.) 180 F. 910; Kinkel v. Chase, 102 Kan. 275, 169 P. 1134, 1135; Columbus Water-Works Co. v. City of Columbia, 46 Kan. 666, 26 P. 1046, 1049; Jackson v. Jarratt, 165 Tenn. 76, 52 S.W.2d 137, 138. Under the facts here a tender of a deed to the Continental Company by the Mulichs was not a prerequisite to their right to maintain this suit.
It was the announcement by the trial judge that he had concluded to direct a judgment in favor of the plaintiff; the ordering part was "for a judgment" which he would thereafter direct as distinguished from a present judgment. Cf. G. Amsinck Co., Inc., v. Springfield Grocer Co., 7 F.2d 855, 858-859 (C.C.A. 8th, 1925); Zadig v. Ætna Ins. Co., 42 F.2d 142, 143 (C.C.A.2d 1930); City and County of San Francisco v. McLaughlin, 9 F.2d 390 (C.C.A. 9th, 1925). Nevertheless, the question remains whether or not rulings made and exceptions thereto taken, not merely after submission of the case, but even after the announcement by the court of its opinion and intended judgment, but before rendition of the final judgment, are made and taken "in the progress of the trial."
A judgment of dismissal for want of prosecution is a final judgment, and appealable. Colorado Eastern Ry. v. Union Pacific Ry. Co. (C.C.A.) 94 F. 312; Wilson v. Republic Iron Steel Co., 257 U.S. 92, 42 S. Ct. 35, 66 L. Ed. 144; Zadig v. Ætna Ins. Co. (C.C.A.) 42 F.2d 142. After a final judgment a refusal to remand may be reviewed on appeal. Ex parte Roe, 234 U.S. 70, 34 S. Ct. 722, 58 L. Ed. 1217; Wilson v. Republic I. S. Co., supra.
Entry is for most purposes not necessary to the validity of an order. Zadig v. Aetna Ins. Co., 42 F.2d 142 (C.C.A. 2). As to the second, if we have any power at all to reverse an order of the District Court relieving a party from a stipulation, we see no reason to do so in this instance. Such stipulations are not as irrevocable as other contracts, and courts will not hold the parties to them when they are given inadvertently and are oppressive, and when the other side will suffer no unfair prejudice if they are set aside.