MacGruer

This is an appeal from an order vacating an order of dismissal. The only question presented is whether the District Court had jurisdiction to vacate the order of dismissal after the expiration of the term in which the dismissal was entered.

The record discloses the following facts: In 1929 the appellees, as plaintiffs, brought an action against appellant, Fidelity & Deposit Company of Maryland, as the surety on an injunction bond, alleging that the surety company was liable on the bond for damages suffered by plaintiffs. After trial and submission of the cause to the court below, it was ordered, on June 2, 1930, “that judgment be entered in favor of plaintiffs, with costs,” and “that the question of damages be and is hereby referred to U. S. Commissioner Arthur G. Fisk to hear evidence, make findings and suggest conclusions of law.” Testimony was taken before the commissioner, and the matter was submitted to him, but, before a decision and before the time for filing a final brief had expired, the commissioner resigned, and the order of reference to him was terminated by order of the court dated May 9, 1931. By the same order A. B. Kreft was appointed special master “to hear…