Laws

(U S) 146; Clark v Post Date: Mon, 28 Jul 2008 12:51:19 +0000
Breed, 66 Wi S 85 New Evidence to Mental Capacit Y If the mental capacity of a party was considered and passed upon by the court in the proceedings sought to be reviewed, new matter merely tending to establish the fact of incapacity, which might then have been procured by reasonable diligence, is not suffi- cient to sustain a bill of revie W Mc- Dowell -'. Morrcll, 5 Lea (Tenn) 278 Objection too Late on Appea L But unless the bill be objected to in the court below on the ground of the cu- mulative character of the evidence, it will be too late to raise the objection on appea L Her v Routh, 3 How (Mis S) 276 Georgia Guerry v Durham, n Ga 16; Hargraves v Lewis, 7 Ga No Idaho Hyde v Lamberso Ni Idaho, N S 539- Illinoi S Pestel v Primm, 109 111 353; Chicago Building So C v Haas, in 111 176; Bell v Johnson, in 111 374; Dolton v Erb, 53 111 289; Lyon v Robbins, 46 111 276 Indiana Gullett v Housh, 7 Blackf (Ind) 52; Jenkins v Prewitt, 5 Blackf (Ind) 7 KentucKy Mitchell v Berry, I Mete (Ky) 602; Edmonson v Mar- shall, 6 J'J Marsh (Ky)449- Marylan d Berrett v Oliver, 7 Gill 6 J (Md) 207; Pfeltz v Pfeltz, I Md C H 455 Missour I Creath v Smith, 20 Mo New York Boyd v Vanderkemp, I Barb C H ( N Y)273 Pennsylvania Littleton's Appeal, 93 Pa St 177 But see Beck's Appeal, 15 Pa St 406 Tennessee See Allen v Barksdale, i Head (Tenn) 238 VirginiaShepherd v Larue, 6 Munf ( Va) 529 United State S Dunlevy v Dun- levy, 38 Fed Rep 459; McDonald v Whitney, 39 Fed Rep 466; Rector v Fitzgerald, 59 Fed Rep 808; Taylor v Charter Oak L In S Co, 17 Fed Rep 566, 3 McCrary (U S) 484; Kennedy v Georgia State Bank, 8 How (U S)s86; Thomas v Harvie, 10 Wheat. (U S) 146; Clark v Killian, 103 U S 766; Central Trust Co v Grant Locomotive Works, 135 U S 226 Englan d Smith v Clay, Am b 645, 3 Br O C C, by Belt, 639, note; Lyt- ton -v Lytton, 4 Br O C C 441; Kelly v Lennon, i J L 305 It has been intimated that laches fora shorter period of time might bar the bill, Chicago Building So C v Haas, in 111 176; or constitute ground for dismissing it, i Foster Fed Pr (2d e d), 354 And, on the other hand, that circum- stances might justify a longer perio d Buckner v Forker, 7 Dana (Ky) 50, holding that if the bill is barred by limitation it may be sustained if it contains proper allegations as a bill to have the benefit of the decree and to carry it into effe Ct In Michigan, under Rule lot, no bill of review can be brought except within the time allowed for bringing an appeal, unless upon reasons satis- factory to the court.

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Webb v Pell, i Paige Post Date: Mon, 28 Jul 2008 12:40:58 +0000
See Johnson v Shepard, 35 Mich 115; Sanford v Haines, 71 Mich 116 And an objection that the applica- tion is too late will not prevail where gross injustice would follo W Vaughan v Black, 63 Mich 215 In Virginia, the Code of 1873, C 175, 5, provides a limitation of three year S See Hatcher v Hatcher, 77 Va 600 The same period is prescribed in West Virginia by C 133, 5, of the code, and was held to bar a bill, although it complained of errors committed in subsequent decrees in the cause pro- nounced within three years from the time the bill was exhibite d Core v Strickler, 24 W Va 689 Five years "after rendering" the decree was the period in Ohio, and this was held not to relate back to the first day of the ter M Nolan -v Urmston, 17 Ohio 170 Statutory Extension of Time Unconstitu- tiona L After the period of limitation fixed by the statute has elapsed it is not in the power of the legislature to remove the bar by extending the perio d Woodman v Fulton, 47 Mis S 682 Computation of Ti Me In England the time is computed from the date of the decree, and not from the time of the enrollment. Deloraine v Brown, 3 Br O C C 621, note, 640; Scarisbrick v Skelmersdale, 4 Y C 106 In Lyon v Robbins, 46 111 276, it was held that the time begins to run only when the decree becomes final under the statute, if the latter makes it provisional for a certain perio d To the same point see Beach v Mos- grove, 16 Fed Rep 305 A bona fide attempt to serve a sub- poena on a bill of review within the time limited is a sufficient commence- ment of the suit. Webb v Pell, i Paige ( N Y) 564 The time within which the control of the Circuit Court over the case is suspended by an appeal subsequently dismissed is excluded in the compu- tatio N Ensminger v Powers, 108 U S 292 2 For New MatTer The period within which a bill of review for newly discovered matter may be filed seems to be entirely in the discretion of the court, governed by the equities of the par- ticular cas e 2 VI I PERFORMANCE OF DECRE e Before any bill of review can be filed the decree must be first obeyed and performe d 3 But not the period between the entry of a void order vacating the order sought to be reviewed and the vacation of such void order, i Fos- ter Fed Pr (26 e d), 354; Central Trust Co v Grant Locomotive Works, 135 U S 207 Pleadin g It is not necessary to plead the statute of limitations or lapse of time if the facts appear in the bill; and it ought to appear in the bill itself that it is filed within the time, otherwise it ought not to be receive d Shepherd v Larue, 6 Munf ( Va) 529; Berrett v Oliver, 7 Gill J (Md) 207; Anderson v Tennessee Bank, 5 Sneed (Tenn) 664; Amiss -v McGin- niss, 12 W Va 371; Jenkinson v Prewitt, 5 Blackf (Ind) 7 See, how- ever, Edmonson v Marshall, 6 J J Marsh (Ky) 449 1 2DaniellC H Pr(6th A Me d)i58 O One disability cannot be added to anotheRMitchell v Berry, i Mete (Ky) 602 A disability is personal, and will not save the rights of other persons who are barred unless the rights of the person within the saving cannot be otherwise secured to hi M Trimble v Longworth, 13 Ohio St 431 One under disability is not bound to wait until the disability is re- moved before filing the bil L Win- chester v Winchester, i Head (Tenn) 460 If a married woman under disabil- ity joins in a bill with others who are barred by lapse of time, when their interests are capable of severance the bill will be dismissed as to al L Kay v Watson, 17 Ohio 27 Where, by the saving clause of the statute of limitations, a right to review a decree is saved to one of the parties against whom it is rendered, the ex- ception inures to the benefit of all if their rights do not admit of severanc e Massie v Matthew, 12 Ohio 351 2 Jacks v Adair, 33 Ark 161; U S v Samperyac, HempSt ( U S) 118 See also Benson v Outten, 5 J J Marsh (Ky)6og; George's Appeal, 12 Pa St 260; Steininger's Appeal, I Pitt S (Pa) 343; Bagg's Appeal, 43 Pa St 512; Rittenhouse's Estate, i Par S Se L Ca S (Pa) 313 Laches of PetitioneRApplication for a bill of review made in 1889 on facts known to the petitioner in 1881 was denied, even though the facts consti- tuted good ground for relief Tilgh- man v Werk, 39 Fed Rep 680 In Central Trust Co v Grant Loco- motive Works, 135 U S 207, it was held that a neglect to file the bill promptly after discovery of the new matter would be lache S See also Thomas v Harvie, 10 Wheat.

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Homer v Zimmerman, 45 111 Post Date: Mon, 28 Jul 2008 12:23:31 +0000
(U S) 146: Day -v Cole, 65 Mich 154 Objection How Take N In Hyde v Lamberson, i Idaho, N S 541, it was said that the bill ought to be filed within the period allowed for appeals after the discovery of the new matter, but that advantage of the defect should be taken by motion at the first appearance of the Defendant Where the period is prescribed by statute, unless the bill shows that the matter was discovered within the time, or that the plaintiff is within a saving of the statute, it will be de- murrabl e Jenkins v Prewitt, 5 Blackf (Ind) 7 Petition for Leav e If the applica- tion is within the limit prescribed by statute it is not necessary that the bill itself be filed within that ti Me Mitchel v Hardie, 84 Ala 349 3 2 Daniell C H Pr (6th A M e d) 1582; i Foster Fed Pr, 356; Wiser v Blachly, 2 John S C H ( N Y) 488; Livingston v Hubbs, 3 John S C H ( N Y) 125; Griggs v Gear, 8 111 2; Kuttner v Haines, 135 111 382; Homer v Zimmerman, 45 111 14 See also Massie v Graham, 3 McLean (U S)4 I Even if the decree improperly awards costs, by reason of want of jurisdiction, still it must be obeyed so long as it is in forc e Merrill v Floyd, 50 Fed Rep 850 When Performance Dispensed wit H But if any act is decreed to be done which extinguishes a right at common law, as the making of an assurance or release, acknowledging satisfaction, cancelling of bonds or evidences, and the like, the court may dispense with the actual performance of that part of the decree until such bill is de- termine d 1 Performance may also be dispensed with where the party is in- solvent, 2 or has deposited in court security for performance, 3 or where the decree requires payment to an irresponsible nonresi- dent, 4 or where it would destroy the subject of the litigatio N 5 VII I LEAVE TO FILE 1 When Necessar Y A bill of review for error apparent may be filed without leave of the court ; 6 but 1 2 Daniell C H Pr (6th A M e d) 1582, citing Williams v Mellish, I Ver N 117; Massie v Graham, 3 McLean (U S)4i; Griggs v Gear, 8 111 2 " The reason and spirit of the rule would only require the party to per- form so much of the decree as, by its terms, he was ordered to perform at the time of filing the bil L" Judson v Stephens, 75 111 255 See also Part- ridge v Usborne, 5 Rus S 251 The delivery of the possession of a house on leasehold premises, in obedi- ence to a decree, will not operate as a release of errors or deprive the party of the right to contest the validity of the decree by bill of revie W The party so performing the decree does not waive his right of homestea d Kuttner v Haines, 135 111 382 2 Davis v Speiden, 104 U S 83; Goodloe v Stalling, 3 Murp H (N Car) 159 See also Fitton v Macclesfield, i Ver N 293; Wiser v Blachly, 2 John S C H ( N Y)488 3 Taylor v Person, 2 Hawks ( N Car) 298; Goodloe v Stalling, 3 Murp H (N Car) 159 This right is recognized by statute in Mississippi; but the security must be given as required, or the execution of the decree will not be affecte d Denson v Benson, 33 Mis S 560 4 Webster v Diamond, 36 Ark 5 Wallamet Iron Bridge Co v Hatch, 19 Fed Rep 347 If there are circumstances bringing the party within the exceptions to the general rule, he must show them to the court and obtain an order relieving him from performance before filing the bil L Kuttner v Haines, 135 111 382 The application should be by petition and notic e Wallamet Iron Bridge Co v Hatch, 19 Fed Rep 347 If the bill be filed without perform- ance or an order relieving from per- formance, the omission can be taken advantage of only by a motion to stay proceedings until performance, or by a motion to strike from the file S Mil- ler v Clark, 47 Fed Rep 850; Davis v Speiden, 104 U S 83 A demurrer waives the objectio N Forman v Stickney, 77 111 575 See also Miller v Clark, 49 Fed Rep 695;. Cochran v Rison, 20 Ala 463 Nor can the objection be made for the first time in the appellate court. Homer v Zimmerman, 45 111 14 And only parties to whom the de- cree gives affirmative relief can object that the decree was not performe d Mickle -v Maxfield, 42 Mich 304 A Supplemental Bill may be filed set- ting up performance subsequent to fil- ing the original bil L Miller v Clark, 49 Fed Rep 695 6 Illinoi S Schaefer v Wunderle (111, 1895), 39 N E Rep 623 KentucKy Edmondson v Moseby, 4 J J Marsh (Ky) 497; Berry v Stockwell, 10B Mo N (Ky) 299; Bleight v M'llvoy, 4T.

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Mississipp I Vaughan v Cutrer Post Date: Mon, 28 Jul 2008 12:09:26 +0000
B Mo N (Ky) 142 Mississipp I Denson v Denson, 33 Mis S 560 New Jerse Y Buckingham v Corn- ing, 29 N J E Q 238 New York Webb v Pell, i Paige ( N Y) 564 North Carolina Kenon v William- son, i Hay W (N Car) 350 Ohio St Clair v Piatt, Wright (Ohio) 532; Way v Hillier, 16 Ohio 108 Tennessee Puryear v Puryear, 5 Baxt (Tenn) 640; Colville v Colville, 9 Humph (Tenn) 524; Dillon v Davis, 3 Tenn C H 386; Saunders v Gregory, 3 Heis K (Tenn) 567 a bill of review grounded upon matters of fact newly discovered can be filed only by express leave of the court j 1 and such leave is also necessary in cases where the averment of newly discovered evidence is united with or accompanied by a charge of fraud in obtaining the decre e 2 2 How Obtaine d Application for leave to file the bill should be made by petition, 3 supported by affidavit 4 setting forth the Ver Mont Barnum v McDaniels, 6 Vt 177 United State S Davis v Speiden, 104 U S 83; Ross v Prentiss, 4 Mc- Lean (U S) 106; Massie v Graham, 3 McLean (U S) 41 In West Virginia the question is undecided, but the court is strongly in- clined to hold that leave is not neces- sar Y Riggs v Huffman, 33 W Va 430 See Amiss v McGinnis, 12 W Va 394; West v Shaw, 32 W Va 195 In Virginia the practice has been to apply for leave to file bills of review for any caus e See Ellzey v Lane, 2 He N M ( Va) 591, not e And in Heermans v Montague ( Va, 1890), 20 S E Rep 903, it was expressly held that a bill of review for error apparent cannot be filed without leav e In Alabama leave is required by statut e Planters', etc, Bank v Dun- das, 10 Ala 661 Bill by Infant. Whether it is neces- sary for an infant to obtain leave, quar e Re Hoghton, Hoghton v Fid- dey, L R, 18 E Q 573 See also I note I, supr A 1 Alabama Caller v Shields, 2 Stew p (Ala) 417 Arkansa S Webster v Diamond, 36 Ark 532; Evans v Parrott, 26 Ark 600 Compare Woodall v Moore, 55 Ark 26 Idaho Hyde v Lamberson,! Idaho, N S 539- KentucKy Edmondson v Moseby, 4 J J Marsh (Ky) 497; Bleight v M'llvoy, 4 TB Mo N (Ky) 142 Marylan d Pfeltz v Pfeltz, I Md C H 455; Hollingsworth v M'Donald, 2Har J (Md)230 Massachusett S Elliot v Balcom, n Gray (Mas S) 286 Michiga N Dodge v Northrup, 85 Mich 243 (by rule of court). Mississipp I Vaughan v Cutrer, 49 Mis S 782 New Jerse Y Buckingham v Corn- ing, 29 N J E Q 238 New York Webb v Pell, i Paige ( N Y) 5 6 4 .

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Murray v Inger- soll (Mich Post Date: Mon, 28 Jul 2008 11:51:51 +0000
North Carolina Kenon v William- son, i Hay W (N Car) 350 Ohio St Clair v Piatt, Wright (Ohio) 532; Way v Hillier, 16 Ohio 108 South Carolina Simpson v Smith, 6 Rich E Q ( S Car) 364 Tennessee Finley v Taylor, 8 Baxt (Tenn) 237; Frazer v Sypert, 5 Sneed (Tenn) 100; Proudfit ^-Picket, 7Cold W (Tenn) 563 United State S Dexter v Arnold, 5 Mason (U S) 303; Massie v Graham, 3 McLean (U S) 41; Thomas v Har- vie, 10 Wheat. (U S) 146; Ross v Prentiss, 4 McLean (U S) 106 For Error Apparent and New MatTer Where error apparent is united with new matter as a ground of review, it would seem to be necessary to obtain leave of the court. Murray v Inger- soll (Mich, 1894), 59 N W Rep 140 And such is the practic e Hoig v Thrap, 84 111 302; Puryear v Pur- year, 5 Baxt (Tenn) 640 2 Schaefer v Wunderle (111, 1895), 39 N E Rep 623 3 i Foster Fed Pr (2d e d), 355; Parish v Marvin, 15 Wi S 247; Caller v Shields, 2 Stew p (Ala) 417; Kenon v Williamson, i Hay W ( N Car) 350 In Long v Cranberry, 2 Tenn C H 85, it was said that the tendency in late years is to make the application by bill and motion so drafted as to embody all the requirements of the preliminary petitio N See Connolly v Connolly, 32 Gratt ( Va) 657 Leave can be given only in open court, and not at chamber S Dance v McGregor, 5 Humph (Tenn) 428, holding that an order granting leave should be entered on the minutes of the court, but that advantage of these irregularities could not be taken by demurreRColville v Colville, 9 Humph (Tenn) 524; Finley v Tay- lor, 8 Baxt (Tenn) 237; People v Huron County Circuit Judge, 40 Mich 166 4 The affidavit must be positive, and not merely upon information and be- new matter with particularity, 1 showing that it has come to the knowledge of the applicant and his agents for the first time since the period at which it could have been made use of in the suit, 2 that it could not, with reasonable diligence, have been discovered sooner, 3 and that it is of such a character that if it had been brought forward in the suit it probably would have altered the judgment.

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Whitten v Saun- ders, 75 Post Date: Mon, 28 Jul 2008 11:37:47 +0000
4 Counter-affidavits are admissibl e 5 3 Discretionary with the Court. Leave to file a bill of review for new matter rests in the sound discretion of the court, 6 and it lief Page v Holmes Burglar Alarm Te L Co, 2 Fed Rep 330; Schaefer v Wunderle (111, 1895), 39 N E Rep 623 The adverse party is entitled to no- tice of the applicatio N Love v Blewit, i Dev B E Q (N Car) 108 If leave is granted, the complainant should be put under such terms as will insure justice to all concerned, allow- ing such testimony to be used as had become inaccessible to the partie S Singleton z Singleton, 8B Mo N (Ky) 368 See also Winchester v Winchester, I Head (Tenn) 460 As to the costs of the application, see Partington v Reynolds, 6 W R 1 Dexter v Arnold, 5 Mason (U S) 303; Massie -v Graham, 3 McLean ( U S) 41; Burson v Dosser, i Heis K (Tenn) 761; Long v Cranberry, 2 Tenn C H 85; Winchester v Win- chester, i Head (Tenn) 460; Colville v Colville, 9 Humph (Tenn) 524; Webster v Diamond, 36 Ark 532; Hollingsworth v M'Donald, 2Har J (Md) 230; Vaughan v Cutrer, 49 Mis S 782; Doyle, Petitioner, 14 R I 55 ; Schaefer v Wunderle (111 , 1895), 39 N E Rep 623 It is not sufficient to state that the party expects to prove certain fact S He must state the evidence distinctly, and file affidavits of witnesses to sup- port his averment. Whitten v Saun- ders, 75 Va 563; Dexter v Arnold, 5 Mason (U S) 303; Schaefer v Wun- derle (111, 1895), 39 N E Rep 623 2 2 Daniell C H Pr (6th A M e d) 1578; i Foster Fed Pr (2d e d), 355 Whether it is in truth newly dis- covered ought to be traversed and finally determined, so as not to leave the question open upon the bill of re- view itself Hodges v Mullikin, i Bland (Md) 503 3 2 Daniell C H Pr (6th A M e d) 1578; Webster v Diamond, 36 Ark 532; Puryear v Puryear, 5 Baxt (Tenn) 640; Nichols v Nichols, 8 W Va 174; Norfolk Trust Co -v Foster, 78 Va 413; Vaughan v Cutrer, 49 Mis S 782; Burch v Scott, i Gill J (Md) 393; Traphagen v Voorhees, 45 N J E Q 41, hold distinctly that he must state facts and circumstances showing diligence, and not rest on a naked averment which is simply his conclu- sio N See also, to the same point, Hatcher v Hatcher, 77 Va 600; Long v Granberry, 2 Tenn C H 85; Purcell v Miner, 4 Wal L (U S) 512 4 2 Daniell C H Pr (6th A M e d) 1578; Simpson v Smith, 6 Rich E Q ( S Car) 364; Hatcher v Hatcher, 77 Va 600 See also Puryear v Puryear, 5 Baxt (Tenn) 640 5 "Not for the purpose of investi- gating or absolutely deciding upon the truth of the statements in the pe- tition; but to present, in a more exact shape, some of the circumstances growing out of the original proceed- ings, which may assist the court in the preliminary discussio N" Dexter v Arnold, 5 Mason (U S) 309; Long v Granberry, 2 Tenn C H 96 Compare Connolly v Connolly, 32 Gratt ( Va) 666, and Davis v Morri S 76 Va 21 6 Nichols v Nichols, 8 W Va 174; Sewing Mac H Co v Dunbar, 32 W Va 335; Jacks v Adair, 33 Ark 161; Webster v Diamond, 36 Ark 532; Pfeltz v Pfeltz, i Md C H 455; Hol- lingsworth v M'Donald, 2Har J (Md) 230; Stockley v Stockley, 93 Mich 307; Dexter v Arnold, 5 Mason (U S) 303; Massie v Graham, 3 Mc- Lean (U S) 41 See also Ketchum v Breed, 66 Wi S 98; Schaefer v Wun- derle (111, 1895), 39 N E Rep 623; Providence Rubber Co v Goodyear, 9 Wal L (U S) 805; Craig v Smith, 100 U S 226, the last case declaring that discretion was to be exercised spar- may be refused, although the facts if admitted would change the decree, where the court, in view of all the circumstances, shall deem it productive of mischief to innocent parties, or for any other reason unadvisabl e 1 4 Effect of Refusal of Leav e A refusal to give leave to file a bill of review is an adjudication upon the case presented by it, and a bar to a subsequent applicatio N* 5 Effect of Filing without Leav e If the bill be filed without leave it may be taken off the file on motion, 3 or dismissed on ingly, and only under circumstances which rendered it indispensable to the merits and justice of the caus e Appeal S Whether an appeal will lie from the granting or refusal of leave is a question upon which the author- ities are not settle d The United States Supreme Court has expressly refrained from deciding it in each case, affirming the action of the court belo W Ricker v, Powell, 100 U S 107; Nickle v Stewart, in U S 776; Dumont v Des Moines Val- ley RC O 131 U S Appendix cl X See also Central Trust Co v Grant Locomotive Works, 135 U S 226 In Virginia an appeal will li e Con- nolly v Connolly, 32 Gratt ( Va) 660, citing Lee v Braxton, 5 Call ( Va) 459; Douglass v Stephenson, 75 Va 747; Williamson z Ledbetter, 2 Munf ( Va) 521 See also Franklin v Wil- kinson, 3 Munf ( Va) 112; Davis v Morriss, 76 Va 21; Norfolk Trust Co v Foster, 78 Va 413 But in this state leave is required for the filing of a bill of review for error apparent.

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1 Chancellor Cooper's rubric Post Date: Mon, 28 Jul 2008 11:25:03 +0000
See VII I i, note, supr A In West Virginia the rule seems to be the same as in Virginia, supr A Thompson v Edwards, 3 W Va 659; Sewing Mac H Co v Dunbar, 32 W Va 335 New Jerse Y Partridge v Perkins, 32 N J E Q 399, affirmed a refusal of leav e South Carolina Refusal of leave was affirmed in Simpson v Smith, 6 Rich E Q ( S Car) 364 Arkansa S In Jacks v Adair, 33 Ark 161, it was decided only that for an error in the exercise of discretion, prohibition from the appellate court was not the remed Y Tennessee It seems that the pro- priety of granting leave can only be decided in the appellate court after a motion to dismiss in the court below, and incorporating the evidence on which the leave is based in the recor d Burson v Dosser, i Heis K (Tenn) 754 In Puryear v Puryear, 5 Baxt (Tenn) 640, a refusal of leave was affirmed because the petition for leave was not accompanied by a proper affi- davit. Illinoi S " The true rule would seem to be that, unless there has been an abuse of the fair discretionary power with which the Circuit Court has been invested in the matter of such applica- tions, its decision should not be dis- turbe d" Schaefer v Wunderle (111, 1895), 39 N E Rep 623 In Michigan the rule is precisely the same as that declared in Illinois, supr A Stockley v Stockley, 93 Mich 307 Error Apparent and New MatTer In Murray v Ingersoll (Mich, 1894), 59 N W Rep 140, leave to file a bill of review for error apparent and new matter was refused, and the appellate court reversed the ruling upon finding error apparent in the original decre e In Hoig v Thrap, 84 111 302, upon appeal from the refusal of a like appli- cation, the order of the court below was affirmed because the original de- cree had been reversed by the appel- late court at the same term, and there was no longer a practical question before it. 1 Chancellor Cooper's rubric in Harris v Edmondson, 3 Tenn C H 211, citing Winchester v WinchesTer I Head (Tenn) 460; Dexter v Arnold, 5 Mason (U S) 315 See also, on the same point, Planters', etc, Bank v Dundas, 10 Ala 661; Murrell v Smith, 51 Ala 301; Frazer v Sypert, 5 Sneed (Tenn) 100 2 Hill v Bowyer, 18 Gratt ( Va) 376; Respass v M'Clanahan, Har d (Ky) 350; Dodge v Northrop, 85 Mich 243 3 2 Daniell C H Pr (6th A M e d) 1579; Knight v Atkisson, 2 Tenn C H I X PARTIES TO THE BIL L None but parties and privies can have a bill of review ; 3 and all the parties to the original decree are, in general, necessary parties to the bill of revie W 4 384; Buckingham v Corning, 29 N J E Q 238 In Arkansas this is the only method of taking the objectio N Webster v Diamond, 36 Ark 532 1 Bainbrigge v Baddeley, 2 P H 705; Henderson v Cook, 4 Dre W 306: Knight v Atkisson, 2 Tenn C H 384; Finley v Taylor, 8 Baxt (Tenn) 237 Want of leave is waived by not de- murring to the bil L Saunders v Gregory, 3 Heis K (Tenn) 567 Compare with the foregoing Tennes- see cases, Dance v McGregor, 5 Humph (Tenn) 428, which decides, at least, that leave obtained in an irregular manner is not a defect that can be reached by demurrer, but only by motion to take the bill from the fil e 2 Carroll v Parran, i Bland (Md) 126, not e 3 Thompson v Maxwell, 95 U S 391; Fitzgerald v Cummings, i Lea (Tenn) 232; Goodrich v Thompson, 88 111 207; Arnold v Moyers, i Lea (Tenn) 308 See also Shaw v Little Rock, etc, RCo, 100 U S 605 But the parties may be made com- plainants or defendants, according to their interests to be reviewed, irre- spectiveof their position intheoriginal suit.

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2 But the court may Post Date: Mon, 28 Jul 2008 11:07:51 +0000
Sloan v Whiteman, 6 Ind 434; Hargraves v Lewis, 7 Ga 118, reced- ing, " so far as I am concerned," said Lumpkin, J, from the contrary views expressed on a prior appeal in the same case in Hargraves v Lewis, 6 Ga 207 Where any other person considers himself aggrieved he must proceed by original bil L Jones v Fayerweather, 46 N J E Q 250: 2 Daniell C H Pr (6th A M e d) 1579; Story E Q P I, 409 Compare dictum in Paul v Frierson, 21 Fla 529, and Burch v Scott, i Gill J (Md) 401 The bill will not lie for an assigne e Armstead v Bailey, 83 Va 242; Gib- son v Green, 89 Va 524; Thompson v Maxwell, 95 U S 391 In Pennsylvania a surety of an ad- ministrator may file a bill to review a decree affecting the administrator's account. Zinn's Appeal, 10 Pa St 469 ; Hartz's Appeal, 2 Grant Ca S (Pa) 83 In respect to the real estate of a testator there is no privity of estate between the administrator and the heir; hence the latter cannot file a bill to review a decree in a controversy concerning lands between the ad- ministrator and other S Curry v Peebles, 83 Ala 225 DemurreRPlaintiff's want of title may be taken advantage of by demur- reRFitzgerald v Cummings, i Lea (Tenn) 232 Party must be Prejudice d No party can have a bill of review unless he has been aggrieved by the decre e Whit- ing v U S Bank, 13 Pet (U S) 6; Brown v White, 16 Fed Rep 900; Webb v Pel L 3 Paige ( N Y) 368; Lansing v Albany In S Co, Hop K C H ( N Y) 102; Montgomery v Ol- well, i Tenn C H 169; Creed v Lan- caster Bank, i Ohio St i; Cooch v Cooch, 18 Ohio 146; Kay v Watson, 17 Ohio 27; St Clair v Piatt, Wright (Ohio) 532; Heermans v Montague ( Va, 1890), 20 S E Rep 902; Hall v Lowther, 22 W Va 570; Laidley v Kline, 25 W Va 208; McCall v Mc- Curdy, 69 Ala 65 One in whose name an original suit wascarriedo Nas the agentof another, cannot maintain a bill of review on the ground that he was equitably entitled to the land in controversy, although of record he appeared only as Agent Kennedy v Ball, Litt Se L Ca S (Ky) 125 But a decree in favor of a party may nevertheless be prejudicial to hi M Hargraves v Lewis, 7 Ga 118; Dexter v Arnold, 5 Mason (U S) 303 Bill by Infant not a Part Y On a bill to invalidate the probate of a will an infant relative of testator was not made a party or represente d The will having been established, it was held that he might maintain a bill of review tor new matTer Connolly v Connolly, 32 Gratt ( Va) 657 4 Bank of U S v White, 8 Pet (U S) 262; Knowland v Sartorious, 46 Mis S 45; Vaughan v Cutrer, 49 Mis S 782; Fuller v McFarland, 6 X SECUEITY ON FILING THE BIL L An English order in chancery provided that no bill of review should be admitted unless the party exhibiting the same first deposited with the registrar the sum of fifty pounds as a pledge to answer such costs and damages as might be awarded to the opposite party in case the bill should be dismisse d 1 This order would probably be followed in those jurisdictions where the English practice prevails (five dollars being reckoned as the equivalent of a pound sterling), the money to be deposited with the clerk of the court. 2 But the court may allow the deposit to be made mine pro tune* or may dispense with it altogetheR4 XL FBAME OF THE BILL stating Part.

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In Illinois, at least Post Date: Mon, 28 Jul 2008 10:50:26 +0000
In a bill of review it is necessary to state the former bill and the proceedings thereon, 5 Heis K (Tenn) 79; Heermans v Mon- tague ( Va, 1890), 20 S E Rep 902 If they are dead their representa- tives must be made partie S Friley z/ Hendricks, 27 Mis S 412 And where a suit is decided against trustees, and other trustees are ap- pointed, the latter are necessary parties to a bill of revie W Debell v Foxworthy, 9B Mo N (Ky) 228 If one of the original parties be omitted the bill should aver the rea- son why his presence is unnecessar Y Knowland v Sartorious, 46 Mis S 45, sustaining a demurrer with leave to amen d An original party who was not a necessary party may be omitte d King v Dundee Mortgage, etc, InveSt Co, 28 Fed Rep 33 Other parties interested may be brought in by amendment. Bennett v Brown, 56 Ga 216 A purchaser from a successful party is not a necessary party to a bill of review by the unsuccessful part Y Clark v Farrow, 10B Mo N (Ky) 446 All whose interests are to be affected by a decree should be made parties to the bill of revie W Turner v Berry, 8 111 541 See also Ludlow v Kidd, 2 Ohio 372 Purchasers at a Judicial Sale are neces- sary parties to a bill to review a final decree confirming the sale, Heermans v Montague ( Va, 1890), 20 S E Rep 904; but not to a bill to review the original decree to which they were not partie S Gies v Green, 42 Mich 107 Want of Necessary Parties is ground for demurreRHeermans v Montague ( Va, 1890), 20 S E Rep 903 004; Fuller v McFarland, 6 Heis K (Tenn) 79- 1 Beames Orders 313; Anonymous, 2 p Wm S 283 2 i Foster Fed Pr (2d e d), 356; Davis v Speiden, 104 U S 83^ See also Winchester v Winchester, i Head (Tenn) 460 In the New York Court of Chancery the plaintiff was required to give the security required on appeal S Field v Williamson, 4 Sandf C H ( N Y) 613; Webb v Pell, i Paige ( N Y) 564 So in New Jerse Y Quick v Lilly, 3 N J E Q 255 3 Loubier v Cross, Dic K 223 4 Davis v Speiden, 104 U S 83 5 Amiss F McGinniss, 12 W Va 371; Anderson v Tennessee Bank, 5 Snee d (Tenn)66i; Frazer v Sypert, 5 Snee d (Tenn) 100; Lagrange, etc, RCo v Rainey, 7 Cold W (Tenn) 420; People v Huron County Circuit Judge, 40 Mich 166; Hatcher v Hatcher, 77 Va 600; Kellom v Easley, i Dil L ( U S) 281; Cain v Goda, 84 Ind 210; Stevens v Logansport, 76 Ind 498; Goldsby v Goldsby, 67 Ala 560, in- timating that possibly the substance of the proceedings would be sufficient. In Illinois, at least, a mere synopsis will not suffic e The bill of review must contain a copy of the former bill, answer, replication, and decre e Aholtz v Durfee, 122 111 286, affirm- ing 25 111 App 43; Cox v Lynn, 138 111 igSi'Turner v Berry, 8 111 541; Kuttner v Jaines, 135 111 382; Jud- son v Stephens, 75 111 255; Goodrich v Thompson, 88 111 207; Axtell v Pulsifer (111, 1895), 39 N E Rep6i8; Gardner v Emerson, 40 111 296 But where the bill is defective in this respect the remedy is to demuRIf it be made a ground of a motion to dismiss, the defect must be specified in the motio N And the objection the decree and the point in which the party exhibiting the bill of review conceives himself aggrieved by it, 1 and the ground of law or new matter discovered upon which he seeks to impeach it ; 2 comes too late for the first time in the appellate court.

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Grace v Field, 13 Post Date: Mon, 28 Jul 2008 10:34:22 +0000
Judson v Stephens, 75 111 255; Lewis v Pleasants, 143 111 271 Waiver of Defe Ct And where the court as well as the parties considered the former record as a part of the bill of review, although not incorporated therein by express reference, the ap- pellate court felt bound to overlook the defe Ct Basye v Beard, 12B Mo N (Ky) 581 A Bill for Error Apparent should not set forth the evidence in the former suit. If it do so a demurrer specially assigning that error alone should be sustained, or the evidence might on motion be stricken out; but a general demurrer must be overruled if the bill shows any substantial error in the recor d Buffington v Harvey, 95 U S 99 See also Contee v Lyons, 19 d C 207; Aholtz v Durfee, 122 I K 286 1 Mitford's PL, C I, 3, p 3; Kel- lom v Easley, i Dil L (U S) 281; Dougherty v Morgan, 6 TB Mo N (Ky) 151; Hendrix v Clay, 2 A K Marsh (Ky) 462; Aholtz v Durfee, 122 111 286, affirming 25 111 App 43; Axtell v Pulsifer (111, 1895), 39 N E Rep 618; Amiss v McGinnis, 12 W Va 371 Great Strictness of averment is re- quire d Goldsby v Goldsby, 67 Ala 560 It is not sufficient to refer to the record of the decree as a paper on file in the court where the cause is pend- ing, with a request that it be made a part of the bil L It must be fully set forth in the bill or appended as an ex- hibit. Grace v Field, 13 Ga 24 2 2 Daniell C H Pr (6th A M e d) 1580; Amiss v McGinnis, 12 W Va37i; Frazer v Sypert, 5 Sneed (Tenn) 100; Hendrix v Clay, 2 A K Marsh (Ky) 462 No errors can be noticed unless they are specifically pointed out.

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