Laws

This case was seemingly distin- Post Date: Mon, 28 Jul 2008 7:54:06 +0000
Owings v Rhodes, 65 Md 408 4 Wright v Bowden, T Jones E Q (N Car) 15, 59 A M De C 600; Johnson v Northey, Pre C C H 134, 2 Ver N 407, which latter was a case of a bill brought by creditors of a party in whose favor a decree had been rendered to have the benefit of and execute the sa Me See also Griggs v Detroit, etc, RCo, 10 Mich 117 So where a decree expresses a pur- pose that the children of a party to a bill for partition shall have the fee after the party's death, without accomplish- ing the object by its own force, or providing the means for effecting its accomplishment, an original bill will be proper to carry the former decree into executio N Wadhams v Gay, 73 111 415- The Present English Practice seems to require that a suit to execute or re- view a prior decree or judgment should only be allowed where there is no convenient method of relief open in the former suit. Smith v Cowell, 6 Q b Div 75; Salt v Cooper, i6C H Div 544 But see Anglo-Italian Bank v Davies, 9 C H Div 275 Sequestration of Choses in Actio N A bill of this character is sometimes re- sorted to in order to subject choses in action to sequestration, without which it is doubtful if this can be don e See Johnson v Chippendale, 2 Si M 55, where it was said: "I find no in- stance in which the court has com- pelled a third party to pay in a chose in action without a bill when any re- sistance has been made by the holder of the chose in actio N" An example of a bill used for this purpose is to be found in the case of Grew v Breed, 12 Met (Mas S) 363 Here the only assets of a debtor com- pany under a decree of a court of equity were a note payable to its order held by a third part Y Execution against the property of the company was returned unsatisfied, and the com- pany refused to indorse the note to complainant S A bill was thereupon filed and sustained, praying that said decree might be enforced, and that the maker of the note might be decreed -o 2 By Person not a Part Y This bill is sometimes exhibited by a person who was not a party, and who does not claim under a party to the original decree, but who claims under a like interest, or who is unable to obtain the determination of his own rights until the decree has been executed ; * or it may be brought by or against a person claiming as assignee of a party to the decre e 2 3 What Decrees of Inferior Court S Such a bill may also be brought to carry into execution the judgment of an inferior court of equity, 3 if the jurisdiction of that court is not equal to the pur- pos e 4 pay plaintiffs the amount due, and for further relief So in White v Ge- raerdt, i Ed W C H ( N Y) 336, where the delay of attachment and seques- tration by the ordinary method would have jeopardized the rights of the cred- itor under decree, he was sustained in filing a fresh bill, thereby restrain- ing the property and party in con- tempt, and so obtaining the effect of the former decre e 1 Oldham v Eboral, Coo P tem P Broug H 27, where it was held that persons established as heirs at law could obtain by a bill, in the nature of a supplemental bill, the benefit of pro- ceedings in a suit to which other persons erroneously supposed to be clothed with that character had been partie S See Lloyd v Johnes, 9 Ve S JR54; Toukin v Lethbridge, Coo P 44 But in Rylands v Latouche, 2 Bligh 566, it was held that, where a suit had been instituted by a devisor and re- vived by a devisee, whose supposed right was displaced by the discovery of a later will, the cause could not be con- tinued by agreement between that de- visee and the plaintiff in the suit to en- able the devisee under the second suit to appeal against the decree; that the proper method of proceeding was not to file a supplemental bill, praying to have the benefit of the proceedings, but to revive de no-vo the suit as abated by the death of the devisor; but that the case would be different where the decree was defective only because in- cidental parties were not before the court. This case was seemingly distin- guished in Oldham v Eboral, Coo P tem P Broug H 27 2 Mitf E Q P I 115; Organ v Gar- diner, C H Ca S Pt.

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It is true Post Date: Mon, 28 Jul 2008 7:38:08 +0000
2, 231, where an original bill to execute a decree of lands against a purchaser who claimed under parties bound by that decree was allowed good on demurreRCar- teret v Paschal, 3 p Wm S 197, no M ; Paschal v Thurston, 4 Br O p C 168; Binks v Biriks, 2 Bligh 593; Terry v McClintock, 41 Mich 492 This doctrine was applied in the re- cent case of Root v Woolworth, 150 U S 401, 40 Fed Rep 723, the facts of which are briefly as follows: M filed a bill in equity against Rto estab- lish his right to certain real estate, ob- tained a decree for the property, and had a conveyance of the same made to him by the masTer M's interest passed by mesne conveyances to W Rre-entered upon the propert Y W thereupon filed in the same court an ancillary and supplemental bill, pray- ing that Rbe restrained from assert- ing his pretended title and from occu- pying the premises, and that he might be decreed to have no interest in the lands ; and also for a writ of possession, and for a perpetual injunction to pre- vent Rfrom setting up his claim S A decree was granted in conformity with the prayer of the bil L But see Att Y Gen'l v Birmingham, etc, Drainage Board, 17 C H Div, 685, 15 C H Div 423 Such was the case of a decree for a legacy in the Court of Great Session in Wales, affirmed in the House of Lords, the execution of which the de- fendant had avoided by fleeing into Englan d On a bill filed stating these circumstances, and asking for an- other decree, the court seems to have thought itself justified in examining the correctness of the former deci- sion, even although it had been af- firmed by the House of Lord S Mor- gan v , i At K 408 But it has been remarked in regard to this case that the court suffered its anxiety to do justice to carry it be- Decree must Be Fina L The decree sought to be executed by this bill must be final, and not interlocutor Y 1 State and Federal Court S When a state court renders a decree against a nonresident, the other parties to the suit have a right to resort by bill to the federal courts to have the decree enforce d 2 v THE ENFORCEMENT. As a general rule the court, in cases of this character, simply enforces, but does not vary, the previous de- cree ; 3 yet it may, nevertheless, consider the directions and vary them in the case of a mistake, so as to attain the justice of the cas e 4 Inequitable Decree S And it is now even settled that if the court finds the decree to be inequitable and unjust it may refuse to en- force it altogether, 5 at least unless the plaintiff consents to take yond the limits of its jurisdiction, Galbraith v Neville, Doug L 5, note 2, 5 East 473, note; Coo P E Q P I 100; a criticism which is doubtless just, Story E Q P I, 431 Compare in this connection Colchester v Colchester, Se L C H Ca S 13; West v Skip, I Ve S 1 McFadden v McFadden, 44Cal306, where it was said: "A bill to carry into effect a former decree must ordinarily show such a decree to have been final in its character, and that by reason of something occurring subse- quently to its rendition the rights of the parties cannot be properly en- forced thereundeRThis is not such a case; and, as was well said by the learned judge of the court below, in denying the application for a new trial, ' nothing can be decreed upon this bill that the parties would not be entitled to in the original proceeding, still undetermine d'" 2 Shields v Thomas, 18 How ( U S) 253 So where a federal court has pro- nounced a decree, it has jurisdiction of a supplemental and ancillary bill to carry the same into effect without re- gard to the citizenship of the partie S Root v Woolworth, 150 U S 401 See also Milwaukee, etc, RCo v Chamberlain, 6 Wal L (U S) 748 3 Mitf E Q P I 116; Robinson v Robinson, 2 Ve S 232, note; Smythe v Clay, 6 Br O p C 395; Minshull z Mohun, 2 Ver N 672, and on appeal 2 Br O p C 32 4 Lechmere v Brasier, 2 J W 287; Colchester v Colchester, Se L C H Ca S 13; Este v Strong, 2 Ohio 401, where the court said: " It is a general rule, that upon a bill to carry a decree into execution, the courtwill not, unless under special circumstances, examine the justice of the decision, or the law of the decree ; but if the case be proper for their interference, will specifically execute the decre e There are cases where this rule has been relaxed and the decree been varied, if, upon ex- amining the proofs taken in the cause, wherein the decree was made, or the directions given, a mistake has been discovere d" Especially will the decree be looked into as between new partie S West v Skip, i Ve S 245 In one case Lord Hardewick even refused to enforce a decretal order, made on the report of the master, for the purchase of land for a charity, on the ground of its being against the statutes of mortmai N Att Y Gen'l v Day, i Ve S 218; Coo P E Q P I 99 5 Wadhams v Gay, 73 111 415; White v Parnther, I Knapp 179; Gay v Parpart, 106 U S 679 Lawrence v Berney, 2 C H Rep 127, where it was said: "Where the com- mon process of the court will not serve, but a new bill and a new decree is become necessary to have the execu- tion of a former decree [which] is in itself unjust, there this court desired to be excused, in making it its own act, to build upon such ill foundations, and charging his own conscience with promoting an apparent injustic e" Johnson v Northey, Pre C C H 134, 2 Ver N 407, where it was held that a bill brought by the creditors of a party in whose favor a decree had been rendered to have the benefit of and execute the same, had the effect of opening said decre e Worden v Gerard, Mitf E Q P I, the proper decree ; * or it may give a qualified relief by directing that the former decree be executed in part and carried no fur- theR2 Consent Decree S When the decree in question is a consent decree, the same principles apply, and the court may refuse to be bound by the consent of the parties, and may investigate the merits as in other case S 3 Who can Call Decree in Questio N But it is only the defendant in such cases who can call the original decree in questio N 4 If the plain- note o, where the court refused to ex- ecute a degree which affected the rights of an infant party, but made a new decree according to the rights of the partie S A Leading Cas e See particularly the leading case of Hamilton v Haugh- ton, 2 Bligh 169, in which this ques- tion was much discussed by the House of Lords, where an erroneous decree was reversed on a bill to carry it into execution, although there had been an acquiescence of forty years in the decre e 1 O'Connell v MacNamara, 3 d W 411, where Sugden, L C, said: " I do not understand the rule to be that this court is bound to carry into execution an erroneous decre e On the contrary, I apprehend that when a party comes into this court asking for the benefit of a former decree, he must be prepared to show that such decree was right. It is true that as this case now comes before the court I cannot order the decree to be amend- ed; but, as I am not bound to carry on or perpetuate error, I will not give the plaintiff the benefit of the former pro- ceeding, unless he consents to take the former decree," citing and relying on Hamilton v Haughton, 2 Bligh 169 2 Burke v O'Malley, I Beatty 121 Where the bill shows absolutely no ground of suit, a decree thereon may be treated as a mere nullity, even in a collateral proceedin g Consolidated Electric Storage Co v Atlantic Trust Co, 50 N J E Q 93 3 Gay v Parpart, 106 U S 679; Lawrence Mfg Co v Janesville Cot- ton Mills, 138 U S 552; Texas, etc, RCo v Southern Pac Co, 137 U S 56; Wadhams v Gay, 73 111 415 Cf Lamb v Gatlin, 2 Dev B E Q (N Car" 37; Edgerton v Muse, 2 Hill E Q ( S Car) 51 The Latest Enunciation of the powers of the court in regard to varying de- crees on bills of this character is to be found in the language of Fuller, C HJ, who delivered the opinion of the court in the case of Lawrence Mfg Co v Janesville Cotton Mills, 138 U S 552 He said: " But where a party returns to a court of chancery to ob- tain its aid in executing a former de- cree, it is at the risk of opening up such decree as respects the relief to be granted on the new bil L Hence, even if it be assumed upon the evi- dence that the decree against the old corporation bound the new one, yet this being, in effect, in one of the two aspects, and, perhaps, the sole as- pect, in which it is framed, a bill to carry the former consent decree into execution, the Circuit Court was not obliged to do so if it believed that decree erroneous ; and that it was erroneous we have already decide d Inasmuch as plaintiff came into a court of equity to have the benefit of the former decree, the court was at liberty to inquire whether circum- stances justified the relief Mitf C H P I 96 Indeed, it would seem to have devolved upon it to show that the decree was a right decre e Such is the language of Lord Redesdale in Hamilton v Haughton, 2 Bligh 193, and of L d C H Sugden in O'Con- nell v MacNamara, 3 d W 412 The same principle was announced as early as 1700 by the Lord Keeper in Johnson v Northey, Finch Pre C C H 4 Robinson v Robinson, 2 Ve S 232, note, and on appeal 5 Br O p C 278 See O'Connell v McNamara, i d W 412; Adams E Q 416 So where the court held that a de- cree had been opened by a new bill brought to enforce its execution, the plaintiff was, nevertheless, not per- mitted to examine witnesses, much less the same witnesses, as to the matters in issue in the former cause; for, though tiff is dissatisfied with the decree, he should impeach it by a bill of review or other proceeding of a similar characTer 1 V I DEMURRERWhere, upon the face of the bill to carry a de- cree into execution, the plaintiff appears to have no right to the benefit of the decree, the defendant must avail himself of this objection by demurreR2 VI I PLE A With regard to pleas, it may be said that any per- son interested under a decree may file a bill to carry it into ex- ecution ; 3 but if the plaintiff in such a case happens to have no right or interest, and this fact is not so apparent on the bill as to admit of a demurrer, the defendant may offer it by way of ple A 4 the court on such a bill might examine ecution the decree in the previous the justice of the former decree, yet suit, where he does not give any rea- this should be done on the proofs son for his failure to make that de- taken in the cause wherein that de- fense in the former suit.

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J (Md) 231, note; Tilghman Post Date: Mon, 28 Jul 2008 7:25:43 +0000
Root v cree was mad e Johnson v Northey, Woolworth, 150 U S 401 Pre C C H 134, 2 Ver N 407 2 Mitf E Q P I 243; Coo P E X PL 1 SCOPE OF ARTICLE, AND DEFINITION S This article will discuss that particular class of bills in chancery which are filed for the purpose of impeaching a decree or enjoining a judgment on the ground of fraud, mistake, accident, surprise, or the lik e The term "decree" throughout this article will be used to designate the sen- tence or decision of a court of equity, and the term "judgment" that of a court of la W I I BILLS TO IMPEACH DECREES 1 For Fraud in Genera L It is a well-settled rule of equity jurisprudence that where a decree has been obtained by fraud or collusion between the parties it may be impeached by an original bill filed for that purpos e 1 In order to attain the object a formal bill will be necessary, the pro- ceeding by motion or petition not being deemed effectiv e 2 2 Consent Decree S So in the case of a consent decree, where the consent has been fraudulently obtained, an original bill is the only proper method of relief 3 3 For Surprise, Accident, etc Possibly an original bill may also be used to impeach or vacate a decree which has been obtained through surprise, accident, or mistake, or which is not rendered on the merits, or is manifestly unjust, 4 although relief 1 Manaton v Molesworth, i Eden 25; Richmond v Tayleur, i p Wm S 736; Loyd v, Mansell, 2 p Wm S 73; Galley v Baker, Ca S tem P Ta L 199; Kennedy v Daly, I Sc H Lef 355; Giffard v Hort, i Sc H Lef 416; Brooke v Mostyn, 2 D e g, J S 373; Flower v Lloyd, 6 C H Div 297, 10 C H Div 327; Walker v Day, S Baxt (Tenn) 77; Sanford v Head, 5 Ca L 297; Cannon v Hemphill, 7 Tex 184; Carneal v Wilson, 3 Litt ^Ky) 81; Williams v Fowler, 2 JJ Marsh (Ky)4O5; Adair v Cummin, 48 Mich 375; Loomer v Wheelwright, 3 Sandf C H ( N Y) 135; Reigal v Wood, i John S C H ( N Y) 402; Whittemore v Coster, 4 N J E Q 438; Wetmore v St Paul, etc, RCo, 3 Fed Rep 177, 5 Dil L(U S)53i; i McCrary (U S) 466; Dunlevy v Dunlevy, 38 Fed Rep 459; Coe v Aiken, 61 Fed Rep 24; Sahl- gard v Kennedy, 2 Fed Rep 295 " The jurisdiction of this court to set aside decrees obtained by fraud, on an original bill filed for that purpose, has long been unquestione d" Wright v Miller, i Sandf C H ( N Y) 120 2 Mussel v Morgan, 3 Br O C C 74; Davenport v Stafford, 9 JuR801, 14 L J, N S C H 414, 8 Beav 503; United Lines Te L Co v Stevens, 67 Md 156; Thruston v Devecmon, 30 Md 210; Ledyard v Henderson, 46 Mis S 260 Contra, Sheldon v Fortes- cue, 3 p Wm S i N Compare Newland v Gentry, 18B Mo N (Ky) 670 Interlocutory Decre e It seems the rule would apply even to an interlocu- tory decre e Armstrong v Wilson, 19 W Va 108 Compare Ledyard v Henderson, 46 Mis S 260, which in- clines to the contrary vie W The case also contains a discussion as to what is a "final decree," in this sens e See also Furnald v Glenn, 64 Fed Rep 49, affirming 56 Fed Rep 372; Bates v Great Western Te L Co, 35 111 App 254 3 Davenport v Stafford, 8 Beav 523; Bradish v Gee, Amb L 229; Morris v Peyton, 29 W Va 201; Mo- nell -v Lawrence, 12 John S ( N Y) 521; French v Shotwell, 5 John S C H ( N Y) 564; Flagler v Crow, 40 111 414; Cannon v Hemphill, 7 Tex 184; Jones v Williamson, 5 Cold W (Tenn) 371 Compare Stump v Long, 84 N CaR616 Decree pro Confes So A decree fro confesso given in the ordinary course of the practice of the court, after appearance, has been held to stand on the same footin g Ogilvie v Herne, 13 Ve S JR563; Pfeltz v Pfeltz, i Md C H 455 4 Kincade v Conley, 64 N Car 387; Walker v Day, 8 Baxt (Tenn) 77; Washington City First Nat Bank v Eccleston,48 Md 145; Anderson v Woolford, 8 Leigh ( Va) 328; Barnesly v Powel, I Ve S 120, 284 Void Decree for a Sal e So where a decree for the sale of real estate is void, it is none the less a cloud on the owner's title, and he can maintain an original bill to remove the same, and thus prevent it from being used for fraudulent and improper purpose S Johnson v Johnson, 30 111 215 Improper Use of Decre e And it ap- pears that an original bill may be maintained to prevent a decree from being made the instrument of oppres- sion and injustice by using it for pur- poses not contemplated by the parties and in conflict with their agreement. Hitch v Fenby, 4 Md C H 190 See Burch v Scott, i Gill J (Md) 393 The General Rule is frequently stated to be that a decree cannot be im- peached or vacated except by a bill of review for error apparent on the face of the record or on account of newly discovered evidence (see article BILLS OF REVIEW, ante), or by an original bill for frau d Thruston v Devecmon, 30 Md 210; Pfeltz v Pfeltz, I Md C H 455! Tomlinson v McKaig, 5 Gill (Md) 256; Hollingsworth v M'Don- ald, 2Har J (Md) 230, note; Frost v Myrick, i Barb ( N Y) 362 See also Clark v Garrett, 6 Lea (Tenn) 262; McGindley v Newton, 75 Mo Exceptions to Rul e In Herbert v Rowles, 30 Md 278, Robinson, J, said: "As a general rule, it is true that a decree once enrolled cannot be opened, except by a bill of review, or by an original bill for frau d To this rule, however, there are well-founded exceptions, arising in cases not heard upon the merits, and in which it is alleged that the decree was entered by mistake or surprise, or under such circumstances as shall satisfy the court, in the exercise of a sound dis- cretion, that the enrolment ought to be discharged and the decree set asid e These exceptions are supported not only by the soundest reason, but by the highest authorit Y The decree in such cases being by default, and not upon the merits, the cause of the default can never be the subject of inquiry until the decree has been pronounced, and generally not until after the term has passe d Without the exercise, therefore, of this power in the court to vacate the enrolment, a party against whom a decree had been entered and enrolled by mistake or surprise, and without any laches on his part, would be without redress, however meritorious his defense may have bee N A bill of review would be of no avail, because his claim to relief is not based upon error apparent in the decree, nor on account of newly discovered evidence; and, unable to charge fraud in obtaining the decree, he could not file an original bill- to vacate it upon that groun d Accord- ingly it is laid down by the most eminent elementary writers, and fully sustained by adjudged cases, that where a case has not been heard upon the merits, the courts will, upon good cause being shown, 'exercise a discre- tionary power of vacating an enrol- ment and giving the party an oppor- tunity of having his case discusse d'" See further on the same subject Cawley v Leonard, 28 N J E Q 467; Smith v Alton, 22 N J E Q 572; Ben- nett v Winter, 2 John S C H ( N Y) 205; Beekman v Peck, 3 John S C H ( N Y) 415; Millspaugh v McBride, 7 Paige ( N Y) 509; Tripp v Vincent, 8 Paige ( N Y)i76; Curtis v Ballagh, 4 Ed W C H ( N Y) 635; Davoue v Fanning, 4 John S C H ( N Y) 199; Carter v Torrance, n Ga 654; Erwin v Vint, 6 Munf ( Va) 267; Kemp v Squire, I Ve S 205; Robson v Cran- wel, i Dic K 62; Washington City First Nat Bank v Eccleston, 48 Md 145; Hollingsworth v M'Donald, 2 HaR. J (Md) 231, note; Tilghman v Werk, 39 Fed Rep 680 See also Hitch v Fenbey, 4 Md C H 190, where the court said, "As between same parties and for the same matters a new original bill cannot be brought after a decree has been made in a cause, and has been enrolled, unless it was ob- tained by frau d" Compare Murray v Murray, 5 John S C H ( N Y) 60; Gelston v Codwise, i John S C H ( N Y) 195; Armstrong v Wilson, 19 W Va 108; Flagler v Crow, 40 111 414; Wortley v Birkhead, 3 At K 809; Shep- herd v Titley, 2 At K 348 1 Thruston v Devecmon, 30 Md 210; U S v Williams, 67 Fed Rep 384; Fisher v Simon, 67 Fed Rep 387; Morris v White, 96 N Car 91; Stevens v Guppy, T R178; Parker v Dee, 3 SwanSt 530; Anonymous, i 4 Technical Character of Bil L A bill to impeach a decree for fraud is termed generally an original bill in the nature of a bill of review, partaking of the character of both classes of bills, 1 though in its essential features it is an original and independent proceedin g 2 5 Without Leave of Court.

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, N S 518 Post Date: Mon, 28 Jul 2008 7:13:46 +0000
It is a matter of right and may be filed without leave of the court, 3 either for fraud in fact or Ver N 131 See also cases cited in the preceding not e 1 Ex p Smith, 34 Ala 455; Stall- worth v Blum, 50 Ala 46 " In the nature of an original bill, though occasioned by a former bil L" Mitford E Q P I (Tyler's e d) 129, 178 In Osborn v Michigan Air Line RCo, 2 Fli P (U S) 503, it is called "neither purely an original bill, nor a bill purely of revie W It is believed to partake of the nature of an original bill, having for its object the review of the proceedings in the original cause, in order to ascertain whether the de- cree therein should be impeached for fraud alleged to have been practised by the parties in obtaining it." See Boyden v Reed, 55 111 459; Gooch v Green, 102 111 507; Griggs v Gear, 8 111 ii ; Boulton v Scott, 3 N J E Q 231; Northern Illinois Coal, etc, Co v Young, ii Bis S (U S) 331; Friese v Hummel (Oregon, 1894), 37 Pac Rep 458 2 Kincaid v Conly, Phi L E Q ( N Car) 274; Haskins v Rose, 2 Lea (Tenn) 708; Pearse v Dobinson, 13 L T., N S 518; Ralston v Sharon, 51 Fed Rep 702, where Hawley, dJ, said: "A bill in equity constitutes an original and independent proceeding when it calls for the investigation of a new case, arising upon new facts, al- though it may have relation to the validity of an existing judgment or decree, and of the complainant's right to claim any benefit by reason thereof, or to be relieved therefrom, as the case may b e In such cases it is now well set- tled that courts of equity have the un- questioned power to give relief against judgments or decrees which were ob- tained by fraud, notwithstanding the fact that the suit, as instituted, has relation to frauds alleged to have been committed in a former suit in courts of another jurisdiction, state or na- tiona L" But see Dunn v Clarke, 8 Pet (U S) I, and compare Williamson v Hartman, 92 N Car 236; Pacific RCo v Missouri Pac RCo, in U S 505- Denomination of Bill Immateria L But it is unimportant what the bill is calle d Maddox v Apperson, 14 Lea (Tenn) 596 See article BILLS IN EQUITY, I I 2, ant e And the terms "bill of re- view " and "original bill" are frequent- ly in this sense used interchangeabl Y Terry v Commercial Bank, 92 U S 454; Sahlgard v Kennedy, 2 Fed Rep 295; Burgess v Pope, 92 111 255; Chi- cago Bld g So C v Haas, in 111 176; Person v Nevitt, 32 Mis S 180; Single- ton v Singleton, 8B Mo N (Ky) 343 3 Wortley v Birkhea d 3 At K 809; Barnesly v Powel, i Ve S 120; Hen- derson v Cook, 4 Drew 306, 6 W R831; Pearse v Dobinson, 13 L T, N S 518; Northern Illinois Coal, etc, Co v Young, ii Bis S (U S) 331; Camp- bell v Texas, etc, RCo, i Woods ( U S) 368, Fed Ca S No 2366; Kim- berly i.

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b Mo N (Ky) 146 Post Date: Mon, 28 Jul 2008 7:02:49 +0000
Arms, 40 Fed Rep 548; Evans v Bacon, 99 Mas S 213; De Louis v Meek, 2 Greene (Iowa) 55; Allen v Hawley, 66 111 174; Gooch v Green, 102 111 507; Griggs v Gear, 8 111 ii ; Edmondson v Moseby, 4 J J Marsh (Ky) 497; Haskins v Rose, 2 Lea (Tenn) 708; Kincaid v Conly, Phi L E Q (N Car) 270 But that leave of court is necessary seems to have been held or assumed in some case S Adair v Cummin, 48 Mich 375; Day v Cole, 65 Mich 154; Elliott v Balcom, n Gray (Mas S) 286 Compare Flower v Lloyd, 6 C H Div 297, 10 C H Div 327 Notice of Hearing of Petition for Leav e But where defendants have an- swered a bill, filed to set aside a par- tition made and confirmed by a de- cree of court on the ground of fraud, they cannot, after decree, object for the first time that they had no notice of the hearing of the petition for leave to file the bil L Adair v Cummin, 48 Mich 375 Where Bill Combines Other Feature S Where the bill is filed on the ground of error in law or newly discovered evidence, as well as to impeach the former decree for fraud, leave of court is necessary, and the application for 6 Proof of Fraud, and Relief Thereo N But the fraud in all cases of the kind is the principal point in issue, and must be established by proof before the propriety of the decree can be investigated; 2 and where it is established the court will restore the parties to their former situation, whatever their rights may be ; 3 so far, at least, as it can be done without prejudice to those who have bona fide altered their positions on the faith of such decree ; 4 for the title of a bona-fide purchaser without notice, under either a judgment or a decree, though fraudulent, will be protecte d 5 leave must be acted on as a whol e Kimberly v Arms, 40 Fed Rep 548; Dodge v Northrop; 85 Mich 243 See I I I O Multifarious Remedies, infr A Ricker v Powell, 100 U S 104, where the court said: "The applica- tion was for leave to file the bill as a whole, and not in parts; and if as a whole it required leave, the part which, if it stood alone, could be put on file without, must stand or fall with the incumbrances that have been at- tached to it." But see Pearse v Dob- inson, 13 L T, N S 518 Where Leave Unnecessarily Aske d Where plaintiff, mistaking the nature of the bill, needlessly asks leave of court to file it, and is refused, he is injured thereby to the extent that he has to get a correction of the error probably appeal before proceeding furtheREdmondson v Moseby, 4 J J Marsh (Ky) 497; Bleight v M'll- voy, 4T. b Mo N (Ky) 146 See, how- ever, Bottsf Patton, 10B Mo N (Ky) 452 1 Griggs v Gear, 8 111 n; Allen v Hawley, 66 111 174; Gooch v Gree N 102 111 507; Adair v Cummin, 48 Mich 375 2 Mitford E Q P I (Tyler's e d) 191; Richmond v Tayleur, I p Wm S 737; Loyd v Mansell, 2 p Wm S 73; Ed- mondson v Moseby, 4 J J Marsh (Ky) 497; Burch v Scott, I Gill J (Md) 425; Flower v Lloyd, 6 C H Div 297, where James, LJ, said: " I agree with what has been said by the master of the rolls, that in the case of a decree (or judgment, as we call it now) being obtained by fraud there always was power, and there still is power, in the courts of law in this country to give adequate relief But that must be done by a proceeding putting in issue that fraud, and that fraud onl Y You cannot go to your adversary and say, ' You obtained the judgment by fraud, and I will have a rehearing of the whole case,' until that fraud is establishe d The thing must be tried as a distinct and positive issue; 'you, "the defendants, or 'you,' the plaintiff, 'obtained that judgment or decree in your favor by fraud; you bribed the witnesses, you bribed my solicitor, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside on the ground of frau d' That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally trie d" 3 Flower v Lloyd, 6 C H Div 297, 10 C H Div 327; Carneal v Wilson, 3 Litt (Ky)9i; Edmondson v Moseby, 4 J J Marsh (Ky) 497; Wadhams z/ Gay, 73 111 415; Boyden v Reed, 55 111 458; Keran v Trice, 75 Va 690; Osborn v Michigan Air Line RCo, 2 Fli P (U S) 503, where the court said, " Certain it is, where a court has juris- diction of a suit brought to impeach a former decree for fraud, if the decree has been carried into execution, the party complaining of the former decree may be put into the situation in which he would have been if the decree had not been execute d" 4 Bowen v Evans, i J L 178; Ex p Edwards, 10 Ve S JR104; Ex p Leman, 13 Ve S JR271; Ex p Rawson, i Ve S B 100; Curtis v Sheffield, 20 C H Div 398 5 Gore v Stackpoole, I Do W 18; Bandon v Becher, 3 C L F 479, 9 Bligh, N S 532; Shelton v Tiffi N 6 Ho W (U S) 186; Dunklin v Wilson, 64 Ala 162; Hayden v Hayden, 46 Ca L 332; Allison v Drake, 145 111 7 Indirect Frau d Besides cases of direct fraud in obtain- ing a decree, it seems to have been considered that where a decree has been made against a trustee, the cestui que trust not being before the court and the trust not discovered, or against a person who has made some conveyance or incumbrance not discovered, or where a decree has been made in favor of or against an heir, when the ancestor has in fact disposed by will of the subject-matter of the suit, the concealment of the trust, or subsequent conveyance or incumbrance, or will, in these cases, ought to be treated as a frau d 1 8 Bills by Infants, Persons non Compotes Mentis, etc So, too, where an improper decree has been rendered against an infant, either with or without actual fraud or surprise, the remedy should be by original bill, to the filing of which, as in other similar cases, no leave of the court is necessary; 2 and 500; Wadhams v Gay, 73 111 415; Mcjilton v Love, 13 111 494; Fowler v Poor, 93 N Car 466 See 44 45 Viet, C 41, 70 (i).

Autor of the post: Undefined

See, however, Deaderick v Smith Post Date: Mon, 28 Jul 2008 6:52:30 +0000
Where Defendant not Serve d But the rule is different where the defendant had no notice of the action and was not served with proces S Shelton v Tiffin, 6 How (U S) 163; Harshey v Blackmarr, 20 Iowa 161; Bryant v Williams, 21 Iowa 329; Stocking v Hanson, 35 Min N 207; McEachern v Brackett, 8 Wash 652 Compare Webster v Diamond, 36 Ark 532 A Purchaser with Knowledge of the fraud will not be protecte d Dunklin v Harvey, 56 Ala 177 1 Mitford E Q P I (Tyler's e d) 191 See Style v Martin, I C H Ca S 152; Carlisle v Goble, 3 C H Rep 94 2 Richmond v Tayleur, i p Wm S 737; Livingston v Noe, I Lea (Tenn) 55; Wright v Miller, i Sandf C H ( N Y) 103; McLemore v Chicago, etc, RCo, 58 Mis S 514; Massie v Mat- thews, 12 Ohio 351; Wright v Gay, 101 111 233; Loyd v Malone, 23 111 43; Kuchenbeiser z/ Beckert, 41 111 172; Ralston v Lahee, 8 Iowa 23 See also Freeman on Judgments, 513; Ben- net v Lee, 2 At K 529; Savage v Car- rol, i Ball B 548, 2 Ball B 451; Perry v Phelips, 17 Ve S JR174; Mills v Dennis, 3 John S C H ( N Y) 367 Bona-fide Purchasers will, however, be protected, as well as all third parties who have, in good faith, acquired rights under a decree against infants, whether the decree is erroneous or fraudulent. Lloyd v Kirkwood, 112 111 338; Allison v Drake, 145 111 500; Joyce v McAvoy, 31Cal273; Frank- lin Sav Bank v Taylor, 53 Fed Rep 854; Wright v Miller, I Sandf C H ( N Y) 103; Livingston v Noe, i Le A (Tenn) 55; Winchester v Winchester, i Head (Tenn) 460; Colclough v Bol- ger, 4 Do W 62; Bennett v Hammil, 2 Sc H Lef 566 Where Infants are Plaintiffs, suing by next friend, and the decree is in their favor, they cannot, in the absence of fraud or collusion, open the same on attaining majorit Y Johns v Harper, 61 Mis S 142 ; Gusdofer v Gundy (Mis S 1894), 16 So Rep 432; Woodall v Moore, 55 Ark 22; Harman v* Davis, 30 Gratt ( Va)46i; Cannon v Hemphill, 7 Tex 184; Gregory v Molesworth, 3 At K 626 Consent or Compromise Decre e But where the decree has been rendered by consent and compromise, although this fact does not appear on its face, the infants being represented by a guardian ad litem, it will not be set aside by a bill of review, on the ground of consent, unless there is some show- ing that the consent was fraudulent, or in some way injurious to the infant defendant S Fr*nklin Sav Bank v Taylor, 53 Fed Rep 854; Gusdofer v Gundy (Mis S, 1894), 16 So Rep 432 In Brooke v Mostyn, 2 De g, J S- 373, Turner, LJ, said: " It is to be considered, then, what are the circum- stances which will furnish sufficient ground for impeaching a compromise made under the order of the court, and I think they must be such as to amount to fraud in the party claiming the benefit of the compromise, mean- such bill may be filed, even during the minority of the infant, by his next friend or guardian, 1 or after his majority, within the proper ti Me 2 And an improper decree against one mentally in- competent, or a lunatic, may be set aside in the same manneR3 9 Requisites of Bill to Impeach for Frau d A bill to set aside a decree for fraud must state the decree and the proceed- ings which led to it, with the circumstances of the fraud in detail on which it is sought to be impeached ; and the prayer must be varied according to the nature of the fraud used and the extent of its operation in obtaining an improper decision of the court ; 4 and although the object and effect of this bill are gener- ally to vacate the decree in toto* and to have the parties restored to their original situation, whatever their rights may be, 6 yet in certain cases collateral or alternative relief may be prayed and grante d 7 ing by fraud, not moral fraud, but what, in the eye of this court, is considered as amounting to frau d A compromise of doubtful rights be- tween adult parties cannot, as I con- ceive, be set aside on any othergroun d If there be no fraud, and equal knowledge on both sides, the com- promise cannot be disturbed, but if there is knowledge on one side which is withheld, the compromise cannot stand, because the withhold- ing of the knowledge amounts in the view of a court of equity to frau d The rule which applies between adults seems to me to be not less applicable to compromises by the court on behalf of infant S The orders of the court cannot be set aside on grounds less strong than those which would be re- quired to set aside the transaction between competent partie S" But see Gooch v Green, 102 111 507; Hale v Hale, 146 111 227 1 Grimes v Grimes, 143 111 550; Gooch v Green, 102 111 507; Kuchen- beiser v Beckert, 41 111 172; Hess v, Voss, 52 111 472; Haines v Hewitt, 129 111 347; Coffin v Argo, 134 111 276; Newland v Gentry, 18B Mo N (Ky) 671; Sledge v Boone, 57 Mis S 222 2 Grimes v Grimes, 143 111 550; Kuchenbeiser v Beckert, 41 111 172; Campau v Van Dyke, 15 Mich 371 3 Thus where a decree of foreclos- ure was obtained against an absent mortgagor, who was known by the plaintiff to be mentally unfit for busi- ness, and advantage was taken of these facts in the accounting, the decree was set aside as fraudulent on an original bill filed by the heir of the mortgagoRCarew v Johnston, 2 Sc H Lef 280 See also Sheldon v Fortescue, 3 p Wm S No 4 Mitford E Q P I (Tyler's e d) 191, 192; Adams E Q 420; Maddox z/, Ap- person, 14 Lea (Tenn) 604; Walker v Day, 8 Baxt (Tenn) 77; Keran v Trice, 75 Va 690; Boyden v Reed, 55 111 458; Gordon v Ross, 63 Ala 5 Kincade v Conley, 64 N Car 387 Where Decree Execute d A decree can be declared absolutely void by the court having jurisdiction so to de- clare it, notwithstanding it has already been execute d Osborn v Michigan Air Line RCo, 2 Fli P (U S) 503 6 See I I 6 Proof of Fraud and Re- lief Thereon, supr A Difference between Bill of Review and Bill for Frau d The difference between the bill under discussion and a bill of review is well set out in the case of Berdanatti v Sexton, 2 Tenn C H 704 The court says: " The object and ef- fect of a bill for fraud, even if the fraud consists in the want of notice, are to vacate the former decree in toto, not to retry the cause; whereas the object and effect of a bill of review are to reverse the decree so far as it is erroneous, and to retry the cause upon the original record, or the original and new proof, according as the bill is for error apparent or newly discovered evidenc e" 7 Thus a bill to set aside a partition of an estate on the ground of fraud may properly ask that relief be ex- tended to the abrogation of the order 10 Multifarious Remedie S But it seems that a bill cannot be maintained which seeks, in the alternative, to review a decree for error apparent on the face of the record or on the ground of newly discovered evidence, or to impeach and set aside a de- cree for frau d 1 11 Defense S A decree cannot be set up in bar of a bill filed to set the same aside as fraudulent,* unless, perhaps, when ac- by which the commissioners to make the partition were appointe d Adair v Cummin, 48 Mich 375 So where a bill was filed to declare fraudulent a decree for the sale of property as well as the sale thereun- der, praying redemption or compensa- tion out of the assets of the purchaser, the bill was sustained and the latter relief grante d Bandon v Becker, 3 C L F 479, 9 Bligh, N S 532 Com- /ar^Manaton v Molesworth, I Eden 18, where the bill was to vary the de- cree by rectifying an allowance of debt in the master's report, which had been fraudulently obtaine d Several Defendant S Where a decree is set aside as to one of several de- fendants, it will be set aside as to al L De Louis v Meek, 2 Greene (Iowa) 55 Enjoining Foreign Decree S The power o'f chancery courts, in a proper case, to enjoin the execution of decrees of other jurisdictions, just as it en- joins judgments at law, is well settle d Campbell v Texas, etc, RCo, I Woods ( U S) 368, Fed Ca S No S 2366, 2369; Oro Fino Mi N Co v, Cullen, i Idaho 113; Douglass v Joyner, i Baxt (Tenn) yz. See, however, Deaderick v Smith, 6 Humph (Tenn) 138 But not an interlocutory decree of the court of another jurisdictio N Fur- nald v Glenn, 64 Fed Rep 49, affirm- ing 56 Fed Rep 372 Will Enjoin Its Own Decree S And a court of equity, where it is found necessary or expedient, will even issue an injunction against its own decree S Montgomery v Whitworth, i Tenn C H 174; Bennett v Brown, 56 Ga 216 See also People v Gilmer, 10 111 242; Robinson v Davis, n N J E Q 302 Contra, Greenlee v Mc- Dowell, 4lre d E Q (N Car) 481 1 Kimberly v Arms, 40 Fed Rep 548, 136 U S 629; Perry v Phelips, 17 Ve S jR183; Gordon v Ross, 63 Ala 363, where the court said: "The same defenses cannot be made ; the same matters are not open for consideration; the same relief cannot be granted; the objects and effects of a bill of review, and of a bill impeaching a decree for fraud, are essentially different.

Autor of the post: Undefined

Walker v Day, 8 Post Date: Mon, 28 Jul 2008 6:35:20 +0000
* * * If enter- tained as a bill of review, the former decree, so far as erroneous, would be reversed, and the court would proceed to retry thecause, rendering thedecree the evidence would authoriz e But if fraud has infected the decree, it must be vacated entirel Y There is no retrial of the caus e" Again, in Berdanatti v Sexton, 2 Tenn C H 704, it was said: "The joinder of two bills [bill of review and bill to impeach decree for fraud] hav- ing such different objects and effects is not in consonance with the practice of the court, and would lead to grave confusio N" Contr A But there are several au- thorities which hold that it is no objection to a bill that it partakes of the nature of both of the above- mentioned classes of bill S Griggs v Gear, 8 111 n; Boyden v Reed, 55 111 459; Campbell v Texas, etc, RCo, i Woods (U S) 368; Webster v Dia- mond, 36 Ark 542; Pearse v Dobin- son, 13 L T, N S 518 Several Purchasers under Decre e So where different tracts of land were sold to different purchasers under a decree, a bill which joined them all as parties was not multifariou S Walker v Day, 8 Baxt (Tenn) 77 And a bill filed against several de- fendants to set aside several distinct conveyances on the ground of fraud is not multifariou S Bobb v Bobb, 76 Mo 419 2 Young v Tucker, 39 Iowa 596; Adair v Cummin, 48 Mich 375, where the court said: "The case as- sails the decree as vicious on account of the alleged vice through which it was brought about and on which it was founded, and it cannot be set up to bar proof of its own fatal contami- natio N When the matter which is being tried is whether the ground of a companied by an answer sufficiently denying the fraud ; * but the bill may be demurred to for want of equit Y 2 Limitatio N A bill to vacate a decree for fraud must be filed within a reasonable time after the discovery of the fraud, having regard to the nature and circumstances of the particular cas e 3 II I BILLS TO IMPEACH JUDGMENTS 1 Equitable Jurisdiction in Genera L Courts of equity have long had, and continually exer- cised, the unquestioned power of relieving against inequitable judg- ments of courts of law, as well as against orders, judgments, or decrees of nearly every other judicial tribuna L 4 The possession decision can or cannot sustain it, the decision itself is no authorit Y" Judgment in Ejectment. So where a sale of land under a decree is valid on its face, a judgment in ejectment against the owner, on the ground that the decree could not be collaterally at- tacked, is no bar to an original bill to set aside the decree and sale under it as fraudulent. Walker v Day, 8 Baxt (Tenn) 77 And a ruling refusing the petition of stockholders to be made parties in a foreclosure suit brought against their corporation is not a bar to an independent suit to set aside the de- cree for frau d Tazewell County v Farmers' L T Co, 12 Fed Rep 752 See also Widgery v Tepper, 7 C H Div 423 Judgment S In actions to annul judgments, the judgment attacked cannot be pleaded as res judicata, ex- cept where the alleged grounds of nullity were considered and passed upon by the judgment itself Hoggatt v Crndall, 39 La An N 976 And the plea of res judicata cannot be op- posed to an action whose object is to interpret and regulate the judgment itself Davidson v New Orleans, 32 La An N 1245 1 French v Shotwell, 5 John S C H ( N Y) 555; Bradish v Gee, Amb L 229; Loyd v Mansell, 2 p Wm S 73 But a General Denial of the fraud is not a sufficient answeRThe allega- tions should be specifically answered, or the bill will be demurrabl e Car- neal v Wilson, 3 Litt (Ky) 91 2 De Louis v Meek, 2 Greene (Iowa) 55 holding that if only some of the defendants demur, and the demurrer is sustained, the bill will be dismissed as to al L Cost S Where a bill was filed to de- clare void on the ground of fraud, a decree of foreclosure, and to redeem, and the mortgagee resisted the right to redeem, he was decreed to pay so much of the costs as was occasioned by his resistanc e Harvey v Tebbutt, i Ja C W 197 3 Campau v Van Dyke, 15 Mich 371; Harwood v Cincinnati, etc, RCo, 17 Wal L (U S) 80 See V I Laches, infr A In Northern Illinois Coal, etc, Co v Young, 12 Fed Rep 809, n Bis S (U S) 331, the limitation in Illinois upon actions at law for damages was applied by Mr Justice Harla N The period allowed for the filing of bills of review or writs of error is sometimes adopted, as in Evans -v Bacon, 99 Mas S 213, where the court said : " It is true there is no statute of limitation fixing a precise period of time after which the right to file a bill like the present is barre d But the limitation of a year for writs of review affords a close and forcible an- alog Y" So in Plymouth v Russell Mills, 7 Allen (Mas S) 438; Allison v Drake, 145 111 500; Sloan v Sloan, 102 111 581; Bell v Johnson, in 111 374; Chicago Bld g So C v Haas, in 111 185; Gordon v Ross, 63 Ala 363 Compare Pacific RCo v Missouri Pa C RCo, 12 Fed Rep 641; Has- kins v Rose, 2 Lea (Tenn) 708; Nealis v Dicks, 72 Ind 374, disapproving Quick v Goodwin, 19 Ind 438 4 A M Eng Enc Y Law, article Judgments, p 139; Freeman on Judg- ments 484 A California Dutil v Pacheco, 21 Ca L 438 Connecticut Pearce v Olney, 20 Con N 544 Illinoi S Boyden v Reed, 55 111 464, where it is said : " No doubt is entertained of the power of a court of chancery to look into a judgment or decree of any court, and if it is found that such decree or judgment was obtained by fraud, to cancel or vacate the sa Me" and use of this power is an inherent doctrine of equity jurisdiction, 1 but it is warily and cautiously exercised, 2 and may, on the whole, Schweitzer v Bonn ( N ].

Autor of the post: Undefined

Eldridge, 49 Pa St 365 Post Date: Mon, 28 Jul 2008 6:16:57 +0000
, 1895), 31 At L Rep 24; Waldrom v Waldrom, 76 Ala 285; Sanford v Head, 5Cal297; Sheetz v Kirtley, 62 Mo 417; Lewis v Williams, 54 Mo 200; Clyce v Anderson, 49 Mo 43; Picot v Bates, 47 Mo 390; Sullivan County v Bur- gess, 37 Mo 300; Mitchell v Williams, 27 Mo 399; State v Roland, 23 Mo 95; Jones v Brinker, 20 Mo 87 Collateral Attac K This method of obtaining relief against judgments is said to constitute, in strictness, a col- lateral, though always an indirect, attack upon the judgment. Eichoff v Eichoff (Ca L, 1895), 24; 40 Pac Rep Krug v Davis, 85 Ind 309; i Black Judgments, 253; 2 Freeman Judg- ments, 485 1 Dringer z/ Receiver, 42 N J E Q 573; Carrington v Holabird, 19 Con N 84, 17 Con N 531; Irvine v Leyh, 102 Mo 200 In Vanmeter v Jones, 3 N J E Q 520, it is said: " It [chancery] exercises the power of setting aside decrees for fraud, not on the ground of concur- rent jurisdiction, but by reason of an ancient, or rather an inherent author- ity growing out of the very principles and constitution of the court, and ex- tending itself over the judgments of courts of every descriptio N" 2 Bateman v Willoe, i Sc H Lef 201; Kersey S Rash, 3 De L C H 321; Sahlgaard v Kennedy, 13 Fed Rep 242; Dixon v Graham, 16 Iowa 310 In Johnson v Templeton, 60 Tex 238, it is said : " Such bills seeking relief from final judgments, solemnly rendered in the due and ordinary course of the administration of justice by courts of competent jurisdiction, are always watched by courts of equity with extreme jealousy, and the grounds upon which interference will be allowed are confessedly narrow and restricte d" Where Belief at La W The decided weight of authority is that equity will not grant relief where a remedy may be had at la W Hendrickson v Hink- ley, 5 McLean (U S) 213; Borland v Thornton, 12Cal440; Merriman v Walton, 105Cal403; Ponder v Cox, 26 Ga 485; Critchfield v Porter, 3 Ohio 518; Lyme v Allen, 51 N H 242; Brick v Burr, 47 N J E Q 189; Phillips v Pullen, 45 N J E Q 5, af- firmed in 45 N J E Q 831; Musgrove Iowa Melick v Tama City First Nat Bank, 52 Iowa 94 KentucKy Williams v Fowler, 2 J J Marsh (Ky) 405 Mississipp I Niles v Anderson, 5 Ho W (Mis S) 386 New Hampshire Billows v Stone, 14 N H 203 New Jerse Y Dringer v Receiver, 42 N J E Q 573; Glover v Hedges, i N J E Q 119; Tomkins v Tom- kins, ii N J E Q 512; Gifford v Thorn, 9 N J E Q 702 New York Dobson v Pearce, 12 N Y 156; Reigal v Wood, i John S C H ( N Y) 402 ; Dederer v Voor- hies, 81 N Y 153; Mather v Par- sons, 32 Hun ( N Y) 338; Hackley v Draper, 60 N Y 88; Michigan v Phoenix Bank, 33 N Y 9; Wright v Miller, 8 N Y 10; Tiernan v Wilson, 6 John S C H ( N Y)4i I Orego N Marsh v Perrin, 10 Ore- gon 364 Pennsylvania Cochran^. Eldridge, 49 Pa St 365 Tennessee Kearney v Smith, 3 Yerg (Tenn) 127; Ballard v Nash- ville, etc, RCo (Tenn, 1895), 28 S W Rep 1088 United State S Metcalf -v Williams, 104 U S 93; Campbell v Texas, etc, RCo, i Woods ( U S) 368, Fed Ca S No 2366 Englan d Barnesly v Powel, I Ve S 120, 284 A discussion of the origin of this power may be found in i Black, Judg- ments, g 356 Judgment in Criminal Actio N Equity will not interfere with the enforce- ment of a judgment in a criminal actio N Moses v Mobile, 52 Ala 198; Tyler v Hamersley, 44 Con N 419; Gault v Wallis, 53 Ga 675; Stuart v La Salle County, 83 111 341 But Verdicts, Awards, and even pri- vate acts of the legislature are subject to this equitable jurisdictio N Boulton v Scott, 3 N J E Q 231; Tomkins v Tomkins, 11 N J E Q 512; Kirkpat- rick v Corning, 40 N J E Q 258; Stevens v Central Nat Bank, 144 N Y 50 Orders and Decrees of the Orphans' Court stand on the same footing and may be relieved against in equit Y Vanmeter v Jones, 3 N J E Q 520; 2 Method of Invoking Eelief The proper method of invoking this equitable jurisdiction is by an original bill in the nature of a bill of review, similar in almost all respects to an original bill im- peaching a decree for frau d 2 Their difference lies only in the fact that while the object of the latter bill is to vacate in toto the decree complained of, 3 the former seeks merely to obtain a new trial, or enjoin the enforcement of the judgment at la W Hence the character of the relief granted is different, and the prayer varied accordingl Y 3 Grounds for Relief The grounds on which this relief will be allowed by equity are various, but tolerably well define d We lo not properly deal with them here further than to enumerate the most usual, as fraud, mistake, accident, surprise, want of juris- diction, and unauthorized appearance of attorne Y 4 v Chambers, 12 Tex 32 Contra, Met- calf v Williams, 104 U S 93; Shelton v Tiffin, 6 How (U S) 163 See A M Eng Enc Y Law, article Judgments, j.

Autor of the post: Undefined

Mr Freeman has clearly stated Post Date: Mon, 28 Jul 2008 6:03:04 +0000
140, notes I, 2 It seems that where a judgment has been used to operate differently from what plaintiff anticipated, the remedy is not in equity but at la W Bellows v Stone, 14 N H 203 When Objection to be Take N But this objection must be taken by de- murrer or answer; it cannot be raised for the first time on appea L Metro- politan E L RCo v Johnston (Su- preme Ct), 32 N Y Supp 49 1 The fact is that simple and effi- cient methods are now so liberally sup- plied by statutes that there is far less t need than formerly for equitable relief See Ratliff v Stretch, 130 Ind 282; Floyd v Jayne, 6 John S C H ( N Y) 479; Pomeroy E Q Ju R, 361, 362 Compare Marshall v Holmes, 141 U S 596 Though in a recent decision of the United States Supreme Court it is said, " It is well established that the appropriate remedy for relief against judgments at law, wrongfully ob- tained, is by bill in equit Y" Phillips v Negley, 117 U S 674 See also Grant v Edwards, 88 N Car 246; Syme U Trice, 96 N Car 243; jewett v Dringer, 31 N J E Q 594 But these Statutes are not Exclusive, in general, of the remedy in equity, es- pecially where such relief is not per- fectly adequat e Ex-Mission Land, etc, Co v Flash, 97Cal610; Lap- ham v Campbell, 61Cal296; Nealis v Dicks, 72 Ind 374; Central Georgia Bank v Iverson, 73 Ga 19 In Irvine v Leyh, 102 Mo 200, it is said : " Courts of equity have an in- herent power to set aside judgments obtained by fraud, and that power is not taken away by the statute pro- viding for a review in the cases be- fore mentione d This suit is not founded on the statute, and hence section 3686 constitutes no ba R" Com- pare dissenting opinion of Sherwood, J , in this cas e Contra, Brown v Chap- man, 90 Va 174 2 Phillips v Negley, 117 U 8674; Nealis v Dicks, 72 Ind 374; Carring- ton v Holabird, 17 Con N 530; Cham- bers v Robbins, 28 Con N 552 In Vanmeter v Jones, 3 N J E Q 520, decrees and judgments, so far as their impeachment by equitable pro- ceedings is concerned, are said to stand upon exactly the same footin g So in Pacific RCo v Missouri Pa C RCo, 12 Fed Rep 641, Mc- Crary, CJ, said : " Courts of equity have undoubted jurisdiction to enter- tain bills to set aside judgments at law or decrees in chancery on the ground of frau d The rules by which the sufficiency of such bills is to be determined are the same, whether the purpose be to set aside a judgment at law or a decree in chancer Y" 3 See I I 9 Requisites of Bill to Im- peach for Fraud, supr A 4 The Leading Gascon the subject in this country is Marine In S Cov Hodg- son, 7 Cranch (U S) 332 The court, by Chief Justice Marshall, laid down the rule as follows: " Without attempt- ing to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining 4 Character of Relief Granted in Genera L It is to be observed that a court of chancery does not have and does not claim fro have the right to exercise any supervision over other tri- bunal S It can neither control their proceedings nor vary or parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against con- science to execute a judgment, and of which the injured party could not have availed himself in a court of law; or of which he might have availed him- self at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancer Y On the other hand, it may, with equal safety, be laid down as a general rule that a defense cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at la W" The doctrine here laid down has been sub- stantially reaffirmed in all later case S 12 A M Eng Enc Y Law, article Judgments, p 145 et se Q Alabama Collier v Falk, 66 Ala 223; Beadle v Graham, 66 Ala 102 California Phelps v Peabody, 7 Ca L 50; Borland v Thornton, 12Cal440 Connecticut Carrington v Hola- bird, 17 Con N 531, 19 Con N 84 Illinoi S Clark v Ewing, 93 111 572; Walker v Shreve, 87 111 474; Lavender v Boaz, 17 111 App 421; Bardonski v Bardonski, 144 111 284; Allen v Smith, 72 111 331; Mellendy v Austin, 69 111 18; Jevne v Osgood, 57 111 340; Smith v Powell, 50 111 21 ; Winchester v Grosvenor, 48 111 521; Sanger v Fincher, 27 111 346; Lucas v Spencer, 27 111 17; Ballance v Loomis, 22 111 82 Indiana Ross z/Banta (Ind, 1893), 34 N E Rep 868; Hogg v Link, 90 Ind 346; Walker v Heller, 90 Ind 198; Harman v Moore, 112 Ind 221 Marylan d Wagner v Shank, 59 Md 313; Kearney v Sascer, 37 Md 264; Kent v Ricards, 3 Md C H 392 Michiga N Miller v Morse, 23 Mich Mississipp I Webster v Skipwith, 26 Mis S 341 Missour I Ritter v Democratic Press Co , 68 Mo 458 ; Carolus v Koch, 72 Mo 647 Nebraska Proctor v Pettitt, 25 Neb 96; Shufeldt vGandy, 34 Neb 32 New Hampshire Hibbard v East- man, 47 N H 507; Robinson v Wheel- er, 51 N H 384; Craft v Thompson, 51 N H 536; Wingate v Haywood, 40 N H 441 New Jerse Y Jewett v Dringer, 31 N J E Q 594; Powers v Butler, 4 N J E Q 465; Cairo, etc, RCo v Titus, 27 N J E Q 102; Herbert v, Herbert, 47 N J E Q ii ; Mechanics' Nat Bank v Bur- net Mfg Co, 33 N J E Q 486; Brick v Burr, 47 N J E Q 189; Quacken- bush v Van Riper, I N J E Q 476; Reeves v Cooper, 12 N J E Q 223; Kinney v Ogden, 3 N J E Q 168; Phillips v Pullen, 45 N J E Q 5; Vaughn v Johnson, 9 N J E Q 173- New York Stilwell v Carpenter, 59 N Y 423, 2 Abb N Ca S ( N Y) 263; Foster v Wood, 6 John S C H ( N Y) 87; Duncan v Lyon, 3 John S C H ( N Y) 356; Huggins v King, 3 Barb ( N Y) 616; Lansing v Eddy, i John S C H ( N Y)SI; Vilas z/ Jones, i N Y 281; Floyd v Jayne, 6 John S C H ( N Y) 482; Simpson v Hart, I John S C H ( N Y) 97; Clute v Potter, 37 Barb ( N Y) 199 Tennessee Ballard v Nashville, etc, RCo (Tenn, 1895), 28 S W Rep 1088; Rice v Railroad Bank, 7 Humph (Tenn) 39; Burem v Foster, 6 Heis K (Tenn) 333 Ver Mont Burton v Wiley, 26 Vt 432; Pettes v Whitehall Bank, 17 Vt 435 VirginiaHolland v Trotter, 22 Gratt ( Va) 136 West VirginiaKnapp z Snyder, 15 W Va 434; Black v Smith, 13 W Va 780; Shields v McClung, 6 W Va 79 Wisconsi N Barber v Rukeyser, 39 Wi S 590; Stowell v Eldred, 26 Wi S 504 United State S Truly v Wanzer, 5 How (U S) 141; Marshall v Holmes, 141 U S 596; Metcalf v Williams, 104 U S 93; Hendrickson v Hinckley, 17 How (U S)443; Crim v Handley, 94 U S 652; Emory v Palmer, 107 U S 3; Knox County v Harshman, 133 U S 152; Railroad Co v Neal, I Woods (U S) 353 Com- pare Bateman v Willoe, i Sc H Lef 202 vacate their judgment S 1 Its relief is always indirect, being ad- dressed to the person before it, not to the proceeding or judg- ment. It takes hold of the party wrongfully in possession of the judgment and prevents his using the same to the injury of his adversar Y* This is usually accomplished by enjoining the judgment, either perpetually 3 or until such time as the judgment creditor will 1 There is much inaccurate lan- guage in the decisions, which leads to some confusion on this point. Mr Freeman has clearly stated the diffi- culty: "The language employed in the decisions respecting the granting of new trials in equity, or the compel- ling of a party to submit to a new trial, is often misleading, in this that it produces the impression that the verdict and judgment at law are va- cated and set aside, and the case there taken up and retrie d Nothing of the kind occur S The court of equity, when it grants relief, does not vacate or otherwise disturb the judgment at law, except in so far as it may enjoin a party from enforcing it.

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" 3 Marine In S Co Post Date: Mon, 28 Jul 2008 5:52:30 +0000
If it finds that with respect to some issue pre- sented in the action at law the com- plainant ought not to be concluded by the judgment in that action, and that such issue ought to be tried anew, it will require the defendant to submit to the retrial thereof" The following cases may be referred to as examples of the inaccuracy of statement mentioned above : Win- chester v Grosvenor, 48 111 521; Wag- ner v Shank, 59 Md 313 2 Arrowsmith v Gleason, 129 U S 86; Pearce v Olney, 20 Con N 544; Gainty v Russell, 40 Con N 450; Tom- kins v Tomkins, n N J E Q 512; Dobson v Pearce, 12 N Y 156; Farm- ers' Bank v Collins, 13 Bush (Ky) 138; Hunt v Boyier, I J J Marsh (Ky) 484; Blight v Tobin, 7 TB Mo N (Ky) 612; Wynne v Newman, 75 Va 811; Richardson v Baltimore, 8 Gill (Md) 433; Wing v Wing, 9 Mo d 109; Barnesley v Powel, I Ve S 284 And an appellate court has no more power in this respect than the court belo W Given's Appeal, 121 Pa St 260 In Yancey v Downer, 5 Litt (Ky) 8, Mills, J, said: "We could not sus- tain the decree of the court below if the merits of the cause were in its favoRIndirectly sets aside the judg- ment at law and awards a new trial totidcm verbi S We cannot concede to the chancellor the power of setting aside and altering the records of a court of la W If the powers of a chan- cellor were separated from the person of the judge of a court of law, which is done elsewhere, and may be done here, we cannot tell how the chancellor would enforce such a decree whether he would retry the cause himself or compel the court of common law to do it. Hence this court has decided that the chancellor must, in such case, act on the person only, and not on the proceedings at common law; or, in other words, he ought to decree that unless the defendant in chancery con- sent in the common-law court to a new trial, in a reasonable time, his hands shall be tied and he be perpet- ually restrained from executing his judgment." 3 Marine In S Co v Hodgson, 7 Cranch (U S) 332; Webster v Dia- mond, 36 Ark 532; People v Lafarge, 3Cal130; Gainty v Russell, 40 Con N 450; Chambers v Robbins, 28 Con N 552; Nealis v Dicks, 72 Ind 374; Larson# Williams (Iowa, 1895), 63 N W Rep 464; Wagner v Shank, 59 Md 313; Sanderson v, Voelcker, 51 Mo App 328; Kincaid v Conly, Phi L E Q (N Car) 270; Glover v Hedges, i N J E Q 119; Tomkins v Tomkins, 11 N J E Q 512; Reeves v Cooper, 12 N J E Q 498; Herbert v Herbert, 49 N J E Q 566; Blakesley v John- son, 13 Wi S 530 Where Retrial Takes Plac e There seems to be some difference in the practice on this point.

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