Laws

On the other hand Post Date: Mon, 28 Jul 2008 15:30:54 +0000
Mickle v Max- field, 42 Mich 304 A decree on a statutory award by arbitrators which shows on its face that the submission was made by a married woman in respect of matters concerning which she was disable d Handy v Cobb, 44 Mis S 699 A decree subjecting land to a ven- dor's lien which the bill shows did not exist thereo N Enochs v Harrelson, 57 Mis S 465 A personal decree for deficiency upon foreclosur e Stark F Mercer, 3 How (Mis S) 377 A final decree pro confesso where the bill does not justify it. Prentiss v Paisley, 52 Fla 927 A decree for the sale of a landlord's interest on foreclosure of a mechanic's lien, growing out of a contract with the tenant, without the landlord's knowledg e Judson v Stephenson, 75 H I 255- A decree ordering a sale of mort- gaged premises, capable of division, to pay the whole mortgage debt, when only a small part of the debt was du e James v Fisk, 9 Smed M (Mis S) 144- A decree based upon the erroneous conclusion that a trustee had power to contract debts binding upon the trust real estate, the deed of trust being annexed to the bill in the original caus e Pracht v Lange, 81 Va 711 A decree confirming a foreclosure sale and containing a prejudicial error in the computation of interest due bjr the terms of the mortgag e Murray v Ingersoll (Mich, 1894), 59 N W Rep 140 Error not Apparent. On the other hand, a decree of the federal court will not be reversed on a bill of review because in the meantime the state court has put a construction on a clause of the state constitution con- trary to that of the Circuit Court in making the decre e King v Dundee Mortgage, etc, InveSt Co, 28 Fed Rep 33 So where the error apparent is de- duced from a decision which is over- ruled on the point in issue pending the bill of review, the latter should be dismisse d Biscoe -v Morrison, n Ark 114 Defect of Partie S Want of a neces- sary party in the original suit may constitute error apparent.

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Where a third party Post Date: Mon, 28 Jul 2008 15:14:53 +0000
Sheppard v Starke, 3 Munf ( Va) t g Otherwise where the defect is not apparent on the record, Arnold v Moyers, i Le A (Tenn) 308; or the party is not a necessary party, White v Holman, 32 Ark 756 2 2 Daniell C H Pr (6th A M e d). 1576, citing Green v Jenkins, I De g, f J 473- Instances of Error Apparent. Where a third party is made a party by order of court and process is served on him, but the bill is not amended so as to contain any allegations or pray any relief against him, and such per- son does not appear, it is error ap- parent to render a decree against hi M McCoy v Allen, 16 W Va 724 And failure in a final decree to dis- pose of questions raised by a cross- bill is error apparent.

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Burdine v Shelton, 10 Post Date: Mon, 28 Jul 2008 15:01:20 +0000
Randall v Payne, i Tenn C H 137; Randall v Payne, I Tenn C H 452 Or a decree against an infant which shows upon its face that it was rendered upon the consent of the guardian ad litem and without evi- dence, Mitchel v Hardie, 84 Ala 349 Compare Franklin Sav Bank v Taylor, 53 Fed Rep 854; but the fact must ap- pear upon its face, Ashford v Patton, 70 Ala 479, where the complainant's claim was contradicted by the recitals in the decre e A decree against an infant without first appointing a guardian ad litem is error apparent. Grace v Field, 13 Ga 24 Or against an infant without an answeRLee v Braxton, 5 Cal L ( Va) Or without legal notice or defens e Peak v Percifull, 3 Bush (Ky) 218 Or without giving the infant a day to show cause against the decree, Perry v Phelips, 17 Ve S 177; Gregor v Moles worth, 2 Ve S 109; Lee v Brax- ton, 4 Call ( Va)459; Wright S Miller, i Sandf C H ( N Y) 120; except where title is divested by the decree, Win- chester z/ Winchester, i Head (Tenn) 460 In Tennessee, a decree not recit- ing the facts upon which it is founded shows error apparent. Burdine v Shelton, 10 Yerg (Tenn) 41 Or a decree of the chancellor revers- ing a final decree rendered at a pre- ceding ter M Saunders v Gregory, 3 Heis K (Tenn) 567 Entering a decree pro confesso with- out an interlocutory order is error apparent.

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Dance v McGregor, 5 Post Date: Mon, 28 Jul 2008 14:41:21 +0000
Bennett v Brown, 56 Ga 216; Grace v Field, 13 Ga 24 See also Braxton v Lee, 4 He N M ( Va) 376 Compare Guerry v Perry- man, 12 Ga 14, and LaGrange, etc, RCo v Rainey,7 Cold W (Tenn) 420, the latter case holding that a defendant who is properly served and does not appear is not prejudiced by the ir- regularit Y An order to enforce a decree which it transcends is error apparent. Grace v Field, 13 Ga 24 A decree of foreclosure and sale shows error apparent where it includes land not described in the mortgage, a copy of which was annexed to the bil L Thompson v Maxwell, 16 Fla 773 Likewise a decree against an ad- ministrator de bonis propriis on a bill filed against him in his representative character, which does not suggest a devastavit. Dance v McGregor, 5 Humph (Tenn) 428 And a decree in favor of an unsued intervenor without service of process on or any appearance to his cross- bill, and without any order making him a part Y Peak v Percifull, 3 Bush (Ky)2i8 For miscellaneous instances of error apparent under this head, see Thomp- son v Edwards, 3 Va 659; Dillon v Davis, 3 Tenn C H 386; Saunders v Gregory, 3 Heis K (Tenn) 567 Error not Apparent.

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Guerry v Perryman, 12 Post Date: Mon, 28 Jul 2008 14:21:31 +0000
Whether a de- cree against a party when he is dead and unrepresented may be reversed on a bill of review was made a query in Neilson v Holmes, Wal K (Mis S) 261, and decided in the negative in Arnold v Moyers, I Lea (Tenn) 313 The rendition of a decree after the death of a party, and without revivor, is not error apparent unless it appears on the face of the decre e Arnold v Moyers, i Lea (Tenn) 308 That a decree was rendered in the absence of counsel, is not available error on a bill of revie W Randall v Payne, I Tenn C H 137; Tilghman v Werk, 39 Fed Rep 683; Quarrier v Carter, 4 He N M ( Va) 242; Wiser v Blachly, 2 John S C H ( N Y) 490 A decree regular on its face is not erroneous because of an alleged agree- ment or consent of the guardian ad litem of the infant defendant, which is not referred to in the record, with- out allegation or proof that such agree- ment was improperly mad e Frank- lin Sav Bank v Taylor, 53 Fed Rep It is not error apparent within the rule to dismiss a bill when some of the defendants have not answere d Finley v Taylor, 8 Baxt (Tenn) 237 ent cannot be predicated of merely formal irregularities, 1 nor of matters resting in discretio N 3 3 Must be Prejudicia L Nor can a bill of review be maintained by one who is not prejudiced by the decree complained of 3 4 The Face of the Decre e In order to ascertain if there be error in the decree, the general practice in this country is to look back of the decree into the whole record of the pleadings and pro- Presumption of Regularit Y The pre- sumption is in favor of the regularity of proceedings not shown to be ir- regulaRPrice S Notrebe, 17 Ark 45; Head v Perry, i TB Mo N (Ky) 254 Want of notice of the time and place for the taking of an account by a commissioner is not sufficient to sus- tain a bill of review where the objec- tion wa S not taken before the decree was rendere d Shenandoah Valley Nat Bank v Shirley, 26 W Va 563 A similar defect in the proceedings was waived in like manner in Winston v Johnson, 2 Munf ( Va) 305 There must be a strong case of error made out. Irby v M'Crae, 4 Desau S ( S Car) 422 1 Such as a formal variance be- tween the decree and the verdict of the jury, which can be remedied by amendment. Guerry v Perryman, 12 Ga 14 Or a final decree based upon the register's report, but rendered before confirmation thereof Ashford v Patton, 70 Ala 479 .

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avens, 7B Mo N (Ky) 351 Post Date: Mon, 28 Jul 2008 14:07:11 +0000
Or where the bill is formally de- fective, of which advantage should have been taken by demurreRGood- rich v Thompson, 88 111 207; Saum v Stingley, 3 Iowa 514 Or a miscasting which might have been rectified by proper attentio N Simms v Thompson, i Dev E Q ( N Car) 203 See also Massie v Gra- ham, 3 McLean (U S) 41 Or an irregularity in bringing a case to a hearin g Quarrier v Carter, 4 He N M ( Va) 242 Or a neglect of a guardian ad litem of an infant to answer a bill after it was amended in an unimportant par- ticulaRForman v Stickney, 77 111 Or an irregularity in an appeal, whereby it was contended that the decree of the appellate court contained error apparent. Brown v Haines, 12 Ohio I Or an omission to serve notice of his appointment upon a guardian ad litem who has appeared and answere d George v George, 67 Ala 192 See further, for illustrations of the text, Berdanatti v Sexton, 2 Tenn C H 699; Hargraves v Lewis, 7 Ga no; Gary v May, 16 Ohio 66; Win- ston v Johnson, 2 Munf ( Va) 305 2 Sending an issue to a jury, even where the evidence clearly preponder- ates on one side, is an instance of this kInd Her v Routh, 3 How (Mis S) 276 Or rendering a decree without ref- erence to a masTer Ashford v Pat- ton, 70 Ala 479; McCall v McCurdy, 69 Ala 65 Or refusal to permit an amendment or a supplemental bill to be file d Turner v Berry, 8 111 541 Nor can error be predicated of a decision upon the question of costs where costs are discretionar Y Clark v Clark, 4 Hay W (Tenn) 36, where the reasons given by the court are conclusiv e 3 LaGrange, etc, RCo v Rai- ney, 7 Cold W (Tenn) 420; Livingston v Noe, i Lea (Tenn) 55; George v George, 67 Ala 192; Hargraves v Lewis, 7 Ga 118; Tremper v Barton, 18 Ohio 418; Burley v Flint, 105 U S 247; Brown v White, 16 Fed Rep 900; Laidley v Kline, 25 W Va 208; Harris v Hanie, 37 Ark 354 Defect of Partie S A party cannot have a bill of review because other parties were not serve d Homer v Zimmerman, 45 111 14 See, how- ever, Alexander v S'.avens, 7B Mo N (Ky) 351, where a want of nec- essary parties was held sufficient ground for a bill of review; and Mc- Call v McCurdy, 69 Ala 65, holding that, in such a case, it must be shown that complainant was prejudice d Original Bill without Equit Y One who was complainant in a suit cannot have a bill of review where there is an evident want of equity in the original bil L Todd v Laughlin, 3 A K Marsh (Ky) 535; Todd v Lackey, i Litt (Ky) 270 ceedings, including orders, master's report, etc, but excluding the evidenc e 1 5 Matters of Fa Ct Matters of fact cannot be inquired into on a bill of review for error apparent.

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An error in the calculation Post Date: Mon, 28 Jul 2008 13:56:17 +0000
* 1 Putnam v Day, 22 Wal L (U S) 60; Shelton v Van Kleeck, 106 U S 532; Buffington v Harvey, 95 U S 99; Whiting v U S Bank, 13 Pet ( U S) 6; Barker v Barker, 2 Woods ( U S) 242; McDougald v Dougherty, 39 Ala 409; Enochs v Harrelson, 57 Mis S 465; Knowland v Sartorious, 46 Mis S 45; Axtelle v Pulsifer (111, 1895). 39 N E Rep 618; Evans v Parrott, 26 Ark 600; Bartlett v Fi- field, 45 N H 81; Saum v Stingley, 3 Iowa 514; Rawlings v Rawlings, 75 Va 76; Pracht v Lange, 81 Va 711; Parker v Dillard, 75 Va 418; Dain- gerfield z/ Smith, 83 Va 81 "The question presented by a bill of review for error apparent is whether the decree rendered is supported, tak- ing everything as stated by the record, excluding the evidence, to be tru e" Enochs v Harrelson, 57 Mis S 465 Commissioner's Eeport. An error in the calculation of interest apparent on the face of a commissioner's re- port may constitute such error apparent as to sustain a bill to re- view a decree based thereo N Shen- andoah Valley Nat Bank v Shirley, 26 W Va 563 See also Ambler v Macon, 4 Call ( Va) 605 Decree Omitting Fact S If the de- cree does not contain a statement of the material facts on which it is based, there can be no relief by a bill of review, but' only upon appeal to some superior tribuna L Dexter v Arnold, 5 Mason (U S) 303 Affidavits after Decre e The court cannot look to affidavits filed in the cause after the final decre e Proudfit v Picket, 7 Cold W (Tenn) 563 See also Hoffman v Knox, 50 Fed Rep 490 2 A party cannot contest the pro- priety of a decree on the ground that it was not justified by the evidenc e Alabama Caller v Shields, 2 Stew p (Ala) 417; Ashford v Patton, 70 Ala 479; Banks v Long, 79 Ala 319 District of Columbi A Contee v Lyons, 19 d C 207 Georgia Central Georgia Bank v Iverson, 73 Ga 23; Guerry v Perry- man, 12 Ga 14 Illinoi S Turner v Berry, 8 111 541; Evans v Clement, 14 111 206; Fellers v Rainey, 82 111 116; Burgess v Pope, 92 111 255; Getzler v Saroni, 18 111 511; Garrett v Moss, 22 111 363- Mississipp I Enochs v Harrelson, 57 Mis S 465 Pennsylvania Cassidy's Estate, 6 Pa Co Ct Rep 627; Riddle's Estate, 19 Pa St 431; Priestley's Appeal, 127 Pa St 420; Earp's Estate, 6 Phi La (Pa) 138 Tennessee Winchester v Winches- ter, i Head (Tenn) 460; Fuller v Mc- Farland, 6 Heis K (Tenn) 79; Living- ston v Noe, I Lea (Tenn) 55; Ward v Kent, 6 Lea (Tenn) 128; Rodgers v Dibrell, 6 Lea (Tenn) 69; Berdanatti v Sexton, 2 Tenn C H 699; Drake v Drake, 12 Heis K (Tenn) 704; Ander- son v Tennessee Bank, 5 Sneed (Tenn) 661 VirginiaDavis v Morris, 76 Va 21 ; Hancock v Hutcherson, 76 Va 609; Rawlings v Rawlings, 75 Va 76; Thomson v Brooke, 76 Va 160 West VirginiaMiddleton v Selby, 19 W Va 168; Thompson v Edwards, 3 W Va 659; Keck v Allender, 37 W Va 201; Nichols v Nichols, 8 W Va 174; Lorentz v Lorentz, 38 W Va 556 United State S Willamette Iron Bridge Co v Hatch, 125 U S i; Dex- ter v Arnold, 5 Mason (U S) 303; Wallamet Iron Bridge Co v Hatch, 19 Fed Rep 347; Kimberly v Arms, 40 Fed Rep 548; Beard v Burts, 95 U S 434; Whiting v U S Bank, 13 Pet (U S)6 Other State S Mattair v Card, 19 Fla 455; Bartlett v Fifield, 45 N H 81; Saum -v Stingley, 3 Iowa 514; Seguin v Maverick, 24 Tex 526; Bar- num v McDaniels, 64 Vt 177; Dough- erty v Morgan, 6 TB Mo N (Ky) 151; Webb v Pell, 3 Paige ( N Y) 368 Waiver of Lie N Whether a vendor intends to waive his lien by taking personal security is a question of fa Ct The presumption that he does may be rebutted by proof, and error in decid- ing upon the fact of waiver is not error apparent.

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Franklin v Wilkinson, 3 Munf Post Date: Mon, 28 Jul 2008 13:38:45 +0000
Burson v Dosser, i Heis K (Tenn) 754 v NEWLY DISCOVERED MATTER Requisites of the New MatTer The new matter for which a bill of review will lie must be relevant and material, 1 such as would probably have changed the result Ownership of Attached Property is a question of fact, and error in deciding it can be corrected only by appea L Kern v Wyatt, 89 Va 885 Conclusions from Admitted Fact S But the pleadings may be looked to, and if the conclusions drawn from ad- mitted facts show error in law, the bill of review will li e Beard v Biirts, 95 U S 436 In Ohio the exhibits and depositions are open for examination unless the facts are stated or found in the de- cre e When the facts are so stated the court will only inquire on review whether they are a sufficient basis for the decre e Stevens v Hey, 15 Ohio 313; Sea v Carpenter, 16 Ohio 412; Nolan v Urmston, 18 Ohio 273; Gaz- ley v Huber, 3 Ohio St 399; M'Louth v Rathbone, 19 Ohio 21; Ludlow v Kidd, 2 Ohio 372 See also Marvin v Trumbull, Wright (Ohio) 386; Creed v Lancaster Bank, I Ohio St i; Holman v Riddle, 8 Ohio St 384; Tracey v Sacket, I Ohio 58 But where there is no evidence at all to support a decree, it will be re- versed for that reason on a bill of re- vie W Medina County, etc, In S Co v Bollmeyer, 5 Ohio St 107 1 Hatcher v Hatcher, 77 Va 600; Parker S Logan, 82 Va 376; Curry v Burns, 3 Call ( Va) 183; Carter v Allan, 21 Gratt ( Va) 241; Traphagen v Voorhees, 45 N J E Q 41; Lorentz v Lorentz, 38 W Va 556; Puryear v, Puryear, 5 Baxt (Tenn) 640 Pertinency to the Issu e There is some contrariety in the decisions as to whether the newly discovered matter must not be such as would be perti- nent to the issue at the hearin g In Massie v Graham, 3 McLean (U S) 41, it was said to be the better opinion that this is not necessary if the new matter be of such a nature as to have changed the decre e In Young v Keighly, 16 Ve S JR348, Lord Eldon said that the newevidence must be evidence of a fact materially present upon the decre e Substantially the same lan- guage was used by Chancellor Kent in Livingston v Hubbs, 3 John S C H ( N Y) 127 In Jenkins v Eldredge, 3 Story (U S) 311, Judge Story said: " It must be evidence bearing directly on the very merits of the case and af- fecting the very foundation of the original decre e" See Partridge v Usborne, 6 Rus S 195, to the point that the new evidence may relate to a matter not in issue in the original caus e But evidence to prove a title not be- fore in issue would not be propeRVaughan v Cutrer, 49 Mis S 782 See also U S v Semperyac,HempSt( U S) 118 Nor can the bill be sustained for new matter which would not be ad- missible on the point wherein error in fact is claime d Schaefer v Wun- derle (111, 1895), 39 N E Rep 623 New Evidence in Paro L There are some authorities which seem to hold that leave should not be granted simply to allow new oral testimony a S to facts which were controverted on the former hearing; and that as to these facts nothing short of written^ evidence will lay the foundation of a bill of revie W In Gilbert's Forum Romanum, C 10, P 186, it is said the court under a bill of review will examine into nothing that was in the original cause unless it be new matter happening subse- quent, which was before in issue, or upon matter of record or writing not known befor e Lord Talbot, in Taylor v Sharp, 3 p Wm S 371, held that the new matter must be a release, or re- ceipt, or something of that kind, for unless the new evidence was limited to evidence in writing, a vexatious person might resort to a bill of re- view as a means to oppress his adver- sary and keep the cause from ever being at reSt This case was cited with approval by Chancellor Kent in Livingston v Hubbs, 3 John S C H ( N Y) 124; and the latter case was in turn cited with approval by Justice Nelson in Southard v Russell, 16 Ho W ( U S) 569 Judge Story, in de- ciding Dexter v Arnold, 5 Mason ( U S) 314, seems to understand Living- ston v Hubbs, 3 John S C H ( N Y) 124, as holding that the new evidence, to be sufficient to entitle a party to a bill of review, must not be a mere accumula- tion of oral evidence as to a fact which was in issue on the former hearing, but must consist of some stringent Newly Discovered MatTer BILLS OF RE VIE W Newly Discovered MatTer had it been brought forward, 1 and which was not known to the plaintiff or his attorney in time to be used in the suit, 58 written evidence or newly discovered papeRThis is the doctrine which the Court of Appeals of Kentucky laid down in Respass v McClanahan, Har d (Ky) 350; Carneal v Wilson, 3 Litt (Ky) 90; and Head z/ Head, 3 A K Marsh (Ky) 121; and which Judge Story thought was supported by sound reaso N That new evidence relating to a fact particularly in issue at the former hearing must be in writing, see also Bradshaw v Garrett, I Port (Ala) 47; Caller v Shields, 2 Stew p (Ala) 417; Benson v Outten, 5 J J Marsh (Ky) 609, granting a bill of review upon the accidental discovery of re- ceipts; Mitchell -v Berry, i Mete (Ky) 602; Vaughn v Hann, 6B Mo N (Ky ) 340; Tilman v Tilman, 4 J J Marsh (Ky) 117; Hinson v Pickett, 2 Hill E Q ( S Car) 351; Brewer v Bowman, 3 J J Marsh (Ky) 492; Ketchum v Breed, 66 Wi S 85; Long v Cranberry, 2 Tenn C H 85 In Easley v Kellom, 14 Wal L (U S) 279, a bill of review was granted upon the discovery of an important docu- ment; and in Ex p Vandersmissen, 5 Rich E Q ( S Car) 519, upon the dis- covery of a deed; and in Nichols v Nichols, 8 W Va 174, upon the dis- covery of a receipt; and in Webster v Diamond, 36 Ark 532, on the discov- ery of new matter in writin g There are other authorities, how- ever, which expressly hold that any evidence, whether written or oral, and whether it relates to facts which were controverted on the former hearing or to entirely new facts, which is so cogent as likely to have produced a different decree, will be sufficient to sustain a bill of revie W Massie v Graham, 3 McLean (U S) 41; Long v Granberry, 2 Tenn C H 85; Thomas v Rawlings, 34 Beav 50 See also Huffacre v Green, 4 Hay W (Tenn) 51; Bowen v Scale, 45 Mis S 30; Con- nolly v Connolly, 32 Gratt ( Va) 657; Traphagen v Voorhees, 45 N J E Q Must Relate to Decree Itself New matter which relates only to proceed- ings subsequent to the decree, as, for instance, a sale under a decree, and which could have no effect on the de- cree, is not availabl e Conover v Musgrave, 68 111 61; Shelton v Van Kleeck, 106 U S 532; Gies v Green, 42 Mich 107 Compare Thomas v Burt, 52 Mich 489 Change of Eulin g A change by the appellate court of its ruling on a ques- tion of law and fact is not such new matter as will sustain a bill of revie W Tilghman v Werk, 39 Fed Rep 680 See also Bledsoe v Carr, 10 Yerg (Tenn) 55- 1 Florida Ownes v Forbes, 9 Fla 325-' Illinoi S Boyden v Reed, 55 111 458; Aholtz v Durfee, 122 111 286, affirming 25 111 App 43 KentucKy Brewer v Bowman, 3 J J Marsh (Ky) 492; Brunk v Means, iiB Mo N (Ky) 220; Mitchell v Berry, i Mete (Ky) 602 Michiga N Donovan v Dwyer, 62 Mich 249 Rhode Islan d Doyle v Petitioner, Tennessee Long v Granberry, 2 Tenn C H 85; Young v Henderson, 4 Hay W (Tenn) 189; Cleveland v Martin, 2 Head (Tenn) 128; Win- chester v Winchester, i Head (Tenn) 460 Ver Mont Brainard v Morse, 47 Vt 320 VirginiaConnolly v Connolly, 32 Gratt ( Va) 657; Trevelyan v Lofft, 83 Va 141; Carter v Allan, 21 Gratt ( Va) 241; Hatcher v Hatcher, 77 Va 600; Douglass v Stephenson, 75 Va United State S Southard v Russell, 16 How (U S) 547; Purcell v Miner, 4 Wal L (U S) 519 Englan d Hungate v Gascoyne, 2 P H 25; Ord v Noel, 6 Mad d 127; Hosking v Terry, 8 JuR, N S 975 See also Bates v Great Western Te L Co, 134 111 536, affirming^ 111 App 254; Maddox v Apperson, 14 Lea (Tenn) 596; Greer v Turner, 47 Ark 29; Quick v Lilly, 3 N J E Q 2 Arkansa S Woodall v Moore, 55 Ark 22; White v Holman, 32 Ark Georgia Murphy v Savannah, 73 Ga 263 Illinoi S McDaniel v James, 23 111 356 KentucKy Calmes v Ament, I A K Marsh (Ky) 459; Carter v Sten- nett, 10B Mo N (Ky) 250; M'Cracken v Finley, I Bibb (Ky) 455 Newly Discovered MatTer SILLS OF REVIE W Newly Discovered Matter, and could not have been known by the use of reasonable dili- Michiga N Ryerson v Eldred, 23 Mich 537 Pennsylvania Costen's Appeal, 13 Pa St 292; Rittenhouse's Estate, i Par S Se L Ca S (Pa) 313 Ver Mont Stevens v Dewey, 27 Vt 638 VirginiaNorfolk Trust Co v Foster, 78 Va 413; M'Call v Graham, I He N M ( Va) 13; Curry v Burns, 3 Call ( Va) 183; Triplet! v Wilson, 6 Call ( Va) 47; Winston v Johnson, 2 Munf ( Va) 305; LeGrand v Francisco, 3 Munf ( Va) 83 West VirginiaHenry v Davis, 13 W Va 256 United State S Shelton v Van Kleeck, 106 U S 532; Dexter v Arnold, 5 Mason (U S) 303 See also Gullett v Housh, 7 Blackf (Ind) 52; Burch v Scott, iGill J (Md)393; Puryear v Puryear, 5 Baxt (Tenn) 640 Discovery since Publicatio N The English rule, requiring that new matter should have come to light after the decree, has been relaxed, and it is suf- ficient if such new matter be discov- ered subsequent to publicatio N Caller v Shields, 2 Stew p (Ala) 417 See also Cochran v Rison, 20 Ala 463 But in describing the require- ments of a bill of review for new mat- ter, it is commonly stated by the courts, as will appear in the cases cited at the head of this note, that the new matter must have been discovered after the decre e Vacating of Collateral Decre e The vacating, subsequent to the decree, of a collateral decree which was intro- duced and treated as res adjudicata, would be proper and sufficient new mat- ter, but not when such collateral decree was void for want of jurisdiction of the court a fact which is not new matter and was presumptively known when the decree was offered in evi- denc e Vetterlein v Barker, 45 Fed Rep 741 To a Point not in Issu e Discovery of new witnesses to a point which the party knew of but failed to put in is- sue, is not sufficient. Bowles v South, Har d (Ky) 460 Erroneous Advice of Counse L Wrong advice of counsel, or his inability to attend the trial, a fact which was un- known to the party at the time, is in- sufficient. Franklin v Wilkinson, 3 Munf ( Va) 112 See also Foy v Foy, 25 Mis S 207 Ignorance of Pendency of Suit.

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Failure to do Post Date: Mon, 28 Jul 2008 13:24:31 +0000
Whether ignorance by a party that he was a party to the suit, no service of process having been made upon him, will sustain a bill of review, qur e Proudfit v Picket, 7 Cold W (Tenn) 563 Decree after Death of a Part Y Ren- dering a decree after the death of a party, without proper revivor, is not new matter arising after the decre e Arnold v Moyers, i Lea (Tenn) 308 Evidence Know N Evidence that the party had knowledge of should have been procure d Whelan v Cook, 29 Md i; Putnam v Clark, 36 N J E Q 33- If he did not have time to get it he should apply for a continuance or re- hearin g Speight v Adams, i Free M C H (Mis S) 318; Green's Appeal, 59 Pa St 235 Evidence Impeaching Defendant's An- sweRWhere the plaintiff knew the defendant's sworn answer was untrue, but only afterward discovered docu- mentary evidence to establish the fact, a bill of review was grante d Nichols v Nichols, 8 W Va 174 Discovery of Defens e In Allen v Barksdale, i Head (Tenn) 238, it was held that the discovery by the defend- ant that he had a defense to the orig- inal bill was not a ground for a bill of revie W Imputed Knowledge of Attorneys or Agent S Testimony known to the party's attorney is known to the party, within the rul e Greenlee v Mc- Dowell, 4 Ire d E Q (N Car) 481 That documents which the party in- tended to file with his original bill were lost or mislaid by his counsel, is not sufficient. Jones v Pilcher, 6 Munf ( Va) 425 Persons under disability are bound by the knowledge of their agent S Winchester v Winchester, I Hea d (Tenn) 460 Knowledge of Predecessor in Titl e Parties claiming through a general assignee are bound to inquire of him, in case of a controversy, for any facts in his knowledge bearing on it. Failure to do this is gross negligenc e Ryer- son v Eldred, 23 Mich 537 genc e 1 Newly discovered evidence which is merely cumulative, or goes to impeach the character of witnesses, is insufficient.

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An Infant must show Post Date: Mon, 28 Jul 2008 13:05:33 +0000
2 V I TIME FOR FILING 1 For Error Apparent. A bill of review for error apparent on the record must be brought within the time 1 Alabama Bradshaw v Garrett, I Port (Ala) 47; Caller v Shields, z Stew p (Ala) 417; Murrell v Smith, 51 Ala 301 Indiana Jenkins v Prewitt, 7 Blackf (Ind)32g; Jenkins v Prewitt, 5 Blackf (Ind) 7 KentucKy Tilman v Tilman, 4 J J Marsh (Ky) 117; Gentry v Thorn- berry, 3 Dana (Ky) 500; Brunk v Means, nB Mo N (Ky)22o; Mitchell v Berry, i Mete (Ky) 602 Pennsylvania Green's Appeal, 59 Pa St 235; Scott's Appeal, 112 Pa St 427; Hartman's Appeal, 36 Pa St 70; Milligan's Appeal, 82 Pa St 395; Con- rad -v Conrad, 9 Phi La (Pa) 510 South Carolina Simpson v Smith, 6 Rich E Q ( S Car) 364; Hinson v Pickett, 2 Hill ( S Car) 351 Tennessee Carmichael v Snod- grass, 6 Lea (Tenn) 183; Frazer v Sypert, 5 Sneed (Tenn) 100; Young v Henderson, 4 Hay W (Tenn) 189 VirginiaKern v Wyatt, 89 Va 885; Connolly v Connolly, 32 Gratt ( Va) 657; Carter v Allan, 21 Gratt ( Va) 241; Trevelyan v Lofft, 83 Va 141; Hatcher v Hatcher, 77 Va 600 United State S Dumont v Des Moines Valley RCo, 131 U S, Appendix CL X; Massie v Graham, 3 McLean (U S)4i; Spill v Celluloid Mfg Co, 22 Fed Rep 94; Purcell v Miner, 4 Wal L (U S) 519; Dexter v Arnold, 5 Mason (U S)3O3- Other State S Boyden v Reed, 55 111 458; Ketchum v Breed, 66 Wi S 85; Hodges v Mullikin, i Bland (Md) 503; Brainard v Morse, 47 Vt 320; Larson v Moore, i Tex 22; Taylor S Boardman, 25 Mich 527; Lansing v Albany In S Co, Hop K C H ( N Y) 102; Sewing Mac H Co v Dunbar, 32 W Va 335; Stevens v Hey, 15 Ohio 313; Evans v Parrott, 26 Ark 600; Kenon v Williamson, I Hay W ( N Car) 350; Perkins v Partridge, 30 N J E Q 559; Foy v Foy, 25 Mis S 207 In Dumont v Des Moines Valley RCo, 13* U S, Appendix CL X, a bill of review was denied, the new matter consisting of record evidence in the archives of the government. An Infant must show that he has exercised reasonable diligence after he became of full age, even though he might have been excused before the N Brunk v Means, nB Mo N (Ky) 220 See, however, Re Hoghton, Hoghton v Fiddey, L R18 E Q 573 Administrators who are strangers to the transactions in litigation are not held to the same stringency in this behalf as persons who are managing their own affair S Owens v Forbes, 9 Fla 325 In Knowland v Sartorious, 46 Mis S 45, and Bush v Madeira, 14B Mo N (Ky) 212, the requirement of the rule was fulfilled and a bill of review grante d Accidental discovery by a personal representative of a deceased, of im- portant papers, after a previous fruit- less search, would seem to show a sufficient exercise of diligenc e Har- ris v Edmondson, 3 Tenn C H 211 2 Jones v Robson, 30 Ga 826; Burson v Dosser, i Heis K (Tenn) 754; Carmichael v Snodgrass, 6 Lea (Tenn) 183; Randolph v Randolph, i He N M ( Va) 181: Parker v Logan, 82 Va 376; Kern v Wyatt, 89 Va 885; Douglass v Stephenson, 75 Va 747; Trevelyan v Lofft, 83 Va 141; Connolly v Connolly, 32 Gratt ( Va) 657; Kinsell v Feldman, 28 Iowa 497; Owens v Forbes, 9 Fla 325; Sewing Mac H Co v Dunbar, 32 W Va 335; Southard v Russell, 16 How (U S) 547; McDougald v Dougherty, 39 Ala 409; Stevens v Hey, 15 Ohio 313; Taylor v Boardman, 25 Mich 527: Ketchum .

Autor of the post: Undefined

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