[*59] The Solicitor General, with whom Mr. Karl W. Kirchwey was on the brief, for the United States.

Mr. Wilson B. Brice, with whom Mr. Samuel Williston was on the brief, for respondent.

[*65] MR. JUSTICE HUGHES, after making the foregoing statement, delivered the opinion of the court.

Preliminarily, objection is raised to the authority of this court to answer the questions certified. Under § 239 of the Judicial Code, questions may be certified by the Circuit Court of Appeals "in any case within its appellate jurisdiction, as defined in section one hundred and twenty-eight"; and § 128 provides that the Circuit Courts of Appeals "shall exercise appellate jurisdiction to review by appeal or writ of error final decisions in the District Court," etc. The argument is that an application to a Circuit Court," of Appeals for a writ of prohibition is an original proceeding. But the jurisdiction of the Circuit Courts of Appeals is exclusively appellate (Act of March 3, 1891, §§ 2, 6, c. 517, 26 Stat. 826, 828; Jud. Code, §§ 117, 128; Whitney v. Dick, 202 U.S. 132, 137, 138); and their authority to issue writs is only that which may properly be deemed to be auxiliary to their appellate power. Jud. Code,[*66] § 262; Rev. Stat., § 716; Act of March 3, 1891, c. 517, § 12, 26 Stat. 826, 829; Whitney v. Dick, supra; McClellan v. Carland, 217 U.S. 268, 279, 280. Section 128 defines the class of cases in which the Circuit Court of Appeals may exercise appellate jurisdiction, and, where a case falls within this class, a proceeding to procure the issue of a writ in aid of the exercise of that jurisdiction must be regarded as incidental thereto and hence as being embraced within the purview of § 239 authorizing the court to certify questions of law.

It is also objected that the certificate sends up the entire case. It is a familiar rule that this court can not be required through a certificate under § 239 to pass upon questions of fact, or mixed questions of law and fact; or to accept a transfer of the whole case; or to answer questions of objectionable generality — which instead of presenting distinct propositions of law cover unstated matters `lurking in the record' — or questions that are hypothetical and speculative. United States v. Bailey, 9 Pet. 267, 273; Webster v. Cooper, 10 How. 54, 55; Jewell v. Knight, 123 U.S. 426, 432-435; United States v. Hall, 131 U.S. 50, 52; Cross v. Evans, 167 U.S. 60, 63; United States v. Union Pacific Rwy. Co., 168 U.S. 505, 512; Chicago, B. & Q. Rwy. Co. v. Williams, 205 U.S. 444, 452, 453; 214 U.S. 492; Hallowell v. United States, 209 U.S. 101, 107; The Folmina, 212 U.S. 354, 363; B. & O.R.R. Co. v. Interstate Com. Com., 215 U.S. 216, 221, 223. But, on the other hand, there is no objection to the submission of a definite and clean-cut question of law merely because the answer may be decisive of the controversy. The question propounded must always be such that the answer will aid the court in the determination of the case, and the importance, or the controlling character, of the question if suitably specific furnishes no ground for its disallowance. This is abundantly illustrated in the decisions. United States v. Pridgeon, 153 U.S. 48; Helwig v. United States, 188 U.S.[*67] 605; United States v. Ju Toy, 198 U.S. 253; Hertz v. Woodman, 218 U.S. 205, 211; American Land Co. v. Zeiss, 219 U.S. 47, 59; Matter of Harris, 221 U.S. 274, 279; Hallowell v. United States, 221 U.S. 317; Beutler v. Grand Trunk Rwy. Co., 224 U.S. 85, 88; Matter of Loving, 224 U.S. 183, 186; The Jason, 225 U.S. 32; Anderson v. Pacific Coast S.S. Co., 225 U.S. 187; Jordan v. Roche, 228 U.S. 436; Texas Cement Co. v. McCord, 233 U.S. 157; Illinois Central R.R. Co. v. Behrens, 233 U.S. 473. In the present case the certificate submits distinct and definite questions of law, which — save question I-B — are clearly pertinent.

Coming, then, to the matters thus submitted, we deem the following considerations to be controlling:

1. In the absence of statute providing otherwise, the general principle obtains that a court cannot set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term. Hudson v. Guestier, 7 Cranch, 1; Cameron v. M'Roberts, 3 Wheat. 591; Ex parte Sibbald, 12 Pet. 488, 492; Bank of United States v. Moss, 6 How. 31, 38; Bronson v. Schulten, 104 U.S. 410, 415-417; Phillips v. Negley, 117 U.S. 665, 673, 674; Hickman v. Fort Scott, 141 U.S. 415; Hume v. Bowie, 148 U.S. 245, 255; Tubman v. B. & O.R.R. Co., 190 U.S. 38; Wetmore v. Karrick, 205 U.S. 141, 149-152; In re Metropolitan Trust Co., 218 U.S. 312, 320, 321. There are certain exceptions. In the case of courts of common law — and we are not here concerned with the special grounds upon which courts of equity afford relief — the court at a subsequent term has power to correct inaccuracies in mere matters of form, or clerical errors, and, in civil cases, to rectify such mistakes of fact as were reviewable on writs of error coram nobis, or coram vobis, for which the proceeding by motion is the modern substitute. Pickett's Heirs v. Legerwood, 7 Pet. 144, 148; Matheson's Adm'r v. Grant's Adm'r, 2 How. 263, 281; Bank of United States v. Moss, supra; Bronson v.[*68] Schulten, supra; Phillips v. Negley, supra; In re Wight, 134 U.S. 136; Wetmore v. Karrick, supra. These writs were available to bring before the court that pronounced the judgment errors in matters of fact which had not been put in issue or passed upon and were material to the validity and regularity of the legal proceeding itself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment, — for, it was said, `error in fact is not the error of the judges and reversing it is not reversing their own judgment.' So, if there were error in the process, or through the default of the clerks, the same proceeding might be had to procure a reversal. But if the error were `in the judgment itself, and not in the process,' a writ of error did not lie in the same court upon the judgment, but only in another and superior court. Tidd, 9th ed., 1136, 1137; Stephen on Pleading, 119; 1 Roll. Abr. 746, 747, 749. In criminal cases, however, error would lie in the King's Bench whether the error was in fact or law. Tidd, 1137; 3 Bac. Abr. (Bouv. ed.) "Error," 366; Chitty, Crim. L. 156, 749. See United States v. Plumer, 3 Cliff. 28, 59, 60. The errors of law which were thus subject to examination were only those disclosed by the record, and as the record was so drawn up that it did not show errors in the reception or rejection of evidence, or misdirections by the judge, the remedy applied `only to that very small number of legal questions' which concerned `the regularity of the proceedings themselves.' See Report, Royal Commission on Criminal Code (1879), p. 37; 1 Stephen, Hist. Crim. L. 309, 310.

In view of the statutory and limited jurisdiction of the Federal District Courts, and of the specific provisions for the review of their judgments on writ of error, there would appear to be no basis for the conclusion that, after the term, these courts in common law actions, whether civil or[*69] criminal, can set aside or modify their final judgments for errors of law; and even if it be assumed that in the case of errors in certain matters of fact, the district courts may exercise in criminal cases — as an incident to their powers expressly granted — a correctional jurisdiction at subsequent terms analogous to that exercised at common law on writs of error coram nobis (See Bishop, New Crim. Pro., 2d ed., § 1369), as to which we express no opinion, that authority would not reach the present case. This jurisdiction was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid. In cases of prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence, as well as where it is sought to have the court in which the case was tried reconsider its rulings, the remedy is by a motion for a new trial (Jud. Code, § 269) — an application which is addressed to the sound discretion of the trial court, and, in accordance with the established principles which have been repeatedly set forth in the decisions of this court above cited, cannot be entertained, in the absence of a different statutory rule, after the expiration of the term at which the judgment was entered.

State statutes relating to the granting of new trials are not applicable. As was said by this court in Bronson v. Schulten, supra, — "The question relates to the power of the courts and not to the mode of procedure. It is whether there exists in the court the authority to set aside, vacate, and modify its final judgments after the term at which they were rendered; and this authority can neither be conferred upon nor withheld from the courts of the United States by the statutes of a State or the practice of its courts." See, also, Ind. & St. L.R.R. Co. v. Horst, 93[*70] U.S. 291, 301; Mo. Pac. Rwy. Co. v. C. & A.R.R. Co., 132 U.S. 191; Fishburn v. C., M. & St. P. Ry. Co., 137 U.S. 60; Fuller v. United States, 182 U.S. 562, 575; United States v. 1621 Pounds of Fur Clippings, 106 Fed. Rep. 161; City of Manning v. German Ins. Co., 107 Fed. Rep. 52.

2. As the District Court was without power to entertain the application, the consent of the United States attorney was unavailing. Cutler v. Rae, 7 How. 729, 731; Byers v. McAuley, 149 U.S. 608, 618; Minnesota v. Hitchcock, 185 U.S. 373, 382. It is argued, in substance, that while consent cannot give jurisdiction over the subject matter, restrictions as to place, time, etc., can be waived. Gracie v. Palmer, 8 Wheat. 699; Toland v. Sprague, 12 Pet. 300, 331; Ayers v. Watson, 113 U.S. 594, 598; Martin's Adm'r v. B. & O.R.R. Co., 151 U.S. 673, 688; Rexford v. Brunswick-Balke Co., 228 U.S. 339, 344, 345. This consideration is without pertinency here, for there was no general jurisdiction over the subject matter, and it is not a question of the waiver of mere `modal or formal' requirements, of mere private right or personal privilege. In a Federal court of competent jurisdiction, final judgment of conviction had been entered and sentence had been imposed. The judgment was subject to review in the appellate court, but so far as the trial court was concerned it was a finality; the subsequent proceeding was, in effect, a new proceeding which by reason of its character invoked an authority not possessed. In these circumstances it would seem to be clear that the consent of the prosecuting officer could not alter the case; he was not a dispensing power to give or withhold jurisdiction. The established rule embodies the policy of the law that litigation be finally terminated, and when the matter is thus placed beyond the discretion of the court it is not confided to the discretion of the prosecutor.

3. We have no occasion to enter upon the broad inquiry[*71] suggested by the argument as to the authority of the Circuit Courts of Appeals to issue writs of prohibition. We have no doubt of the power to issue the writ in the case stated, and we need not discuss other cases supposed. Prior to the application for a new trial in the District Court, the defendant had sued out a writ of error and the appellate jurisdiction of the Circuit Court of Appeals had attached. Brooks v. Norris, 11 How. 204, 207; In re Chetwood, 165 U.S. 443, 456; Mutual Life Ins. Co. v. Phinney, 178 U.S. 327, 335; Old Nick Williams Co. v. United States, 215 U.S. 541, 543. Basing the argument upon the proposition that the Government had no right of review in the Circuit Court of Appeals in a criminal case, it is urged that the Government cannot be regarded as deprived of any relief which it is entitled to seek from that court, and hence that it cannot be said that the issue of the writ was necessary for the exercise of its jurisdiction. Jud. Code, § 262. But the case was actually pending in the Circuit Court of Appeals on the defendant's writ of error, and the Government had all the rights of a litigant in that court seeking to maintain a judgment assailed. It is said that the defendant could have procured the dismissal of his writ, but in fact the writ had not been dismissed. It is said, also, that the consent to the hearing by the District Court of the application for a new trial operated as a waiver of any rights the Government could have in the Circuit Court of Appeals. This conclusion is sought to be derived from the asserted efficacy of the consent in the lower court, and, as we have seen, it had no efficacy there, and it had no reference whatever to the proceedings in the higher court. The defendant was still insisting upon his rights as plaintiff in error in the Circuit Court of Appeals, and the United States, as the opposing party in that court, was entitled to its aid in order to preserve the integrity of the record and to prevent unauthorized action by the court below with respect to the judgment[*72] under review. For this purpose, the writ of prohibition was the appropriate remedy.

We answer question I-A in the affirmative, and questions II and III in the negative. Question I-B involves an inquiry not raised by the case made and is not answered.

It is so ordered.

MR. JUSTICE McREYNOLDS took no part in the consideration and decision of this case.