Levy

There are two motions — the first, a petition for new trial; the second, an independent motion to vacate the judgment and set aside the submission.

[1] 1. As to the second, the motion to vacate the judgment, it comes too late, and may not be considered on its merits. The judgment was entered on September 25, 1914, in the October term of that year, and this motion was not noticed or made during that term, but in February of the succeeding term. This was not in time. On the' expiration of the term in which the judgment was entered the court lost jurisdiction to thereafter set aside, modify, or amend that judg- *337 meat in any respect, except perhaps as to a mere clerical misprision, in the absence of a preservation of the right by a motion made or noticed during the term. 2 Foster’s Federal Practice, § 379; Bronson v. Schulten, 104 U. S. 410, 415 , 26 L. Ed. 797 . This rule is so veil settled that it entirely disposes of that motion, and it is unnecessary to notice the further objections interposed thereto.

[2] 2. The petition for new trial was served and filed in due time, omirachig with others the ground of “accident or surprise which ordinary prudence could not have guarded…