548
J'EPERAL REPORTER,
vol. 40.
itation, ",hloh it puts the right of removal. Such construction, I venture to observe, would be wholly defeated, if the obiter suggestion in Simon8on/v. Jcrrdon wereaQcepted as the correct interpretation of the statute. The cases of McKee:n v. [ves, 35 Fed. Rep. 801, and Lockhart v. Railroad 00.,88 Fed Rep. 274, are not in point. These cases arose in Indiana and Tennessee, respectively, where the time for pleading is regulated by rule of court. In each case it was held that. the petition was filed the time for pleading allowed by the rule of court. In v. Southern Pac. Co., 36 Fed. Rep. 279, the cause was ptoperly remanded, the petition being filed after expiration of the time for answeriqg. Judge, S4BINholds to the necessity of a strict compliance with the statute, which he says "was intended to compel parties to decide in limine in what court they wish the trial of the case to be had, and to make them abide by such decision." Any inference sought to be drawn from certain expressions in the opinion that the time for removal might be enlarged by extension of the time for answering is nullified by the decision in Delbanco v. Singletary, ante, 177, in which Judge SABIN explicitly holds that the time cannot be enlarged by order or stipulation of any kind. In Kaitel v. Wylie, 38 Fed. Rep. 865, the cause was remanded. The petition was held too late, although filed before answer was due to an amended declaration. J BJ.ODGETT expressly declares the statute to be imperative that the application for removal must be made when the plea is due, and that it comes too late when made after the time to plead designated by law or by rule ofcourt. The cases of Dixon v. Telegraph.Co., 38.Fed. Rep. 377, and Austin v. Gagan, 39 Fed. Rep. 626,-decisions by Judge sustain the conclusion which I have reached upon the proper construction of the statute, and, as I think, demonstrate its correctness. The motion is overruled.
KmBEliLY
fl.
ARMS et
114:.
Co'U'I't,N. D. OMo, E. D. November 99, 1889.;
L
EQUITY-BILL OJ' REVIEW-PENDING ApPEAL TO SUPREME COURT.
The circuit colirt cannot entertain a:bill of review to vacate a decree, from which the petitioners ha.ve alld been allowed, an appeal to the suprllme court, though they·aver that thlly QO Dot intend to P!irfect their appllal in the supreme court. .,
.. BAME-DECREE ENTERED IN PURSUANCE OJ' MAND.lTE.
..
Where the circuit court has, under and in pursuance of a mandate from the supreme court. entered a decree, it capnot entertain a bill to review such decree, either , for errors of law apparent o:rfol'newly-discovered evidence,without leave first had from the supreme court. . A bill of review cannot be or conclusions from the evidence. EVIDENCE.
.. Sum-ERRONEOUS
to correct supposed erroneous deductions
"BAME-FAILURB TO AVER PBRPORoMANCE.
The proposed bill must ,aver performance of, or inabUity to perform. the decree BOught to be reviewed. '
KIMBERLY t1. ARMS.
649 . ,
So
SAME-FRAUD AND PERJURY.
A bill of review sought on the ground of fraud and perjury will not be entertained, where it appears that the alleged fraudulently procured and perjured evidence was not controlling in the determination of the case on its merits.
8. '1.
SAME-ALLEGATIONS 011' DEFENSE ON MERITS.
In order to obtain relief on the ground of fraud, it must be averred and shown that there was a valid defense on the merits. Though a bill of review on the ground of fraud in obtaining the decree may be filed without leave Qf the' court granting- the decree, where that ground of relief is united in the same bill with others, which require such previous leave, the bill Q8I1not be separated and leave granted as to part and refused 8S to the others.
SAME-LEAVE 011' COURT.
In Equity. On application for leave to file a bill ofreview. A. W. Jones and Judge Griffith, for Kimberly. Stevenson Burke, for Arms and wife. JACKSON, J. Under and in pursuance of a mandate of the supreme court of the United States, a final decree in favor of complainant, Kimberly, was entered in this cause in May, 1889. The defendants Ar:ms and wife now make application to this court for leave to file a bill of review, for the purpose of vacating and setting aside that decree. The grounds chiefly relied on for annulling said decree, as set forth in the bill of review sought to be filed, are alleged errors of law apparent on the face of the record, newly-discovered evidence, and fraud on the part of Kimberly in procuring said decree. It appears from the record in the case and the proposed bill of review, which is presented with the application for leave to file, that in 1878 complainant, Kimberly, and defendant Charles D. Arms entered into partnership for the purchase of mining interests and properties,-Arms being the active partner in making the purchases and conducting the business of the firm; that in 1879, while said partnership was still in existence, Arms, in connection with one Fairbanks, purchased an interest in the Grand Central mine, in Arizona, In 1880 the partnership of Kimberly & Arms terminated, and thereafter a controversy arose between them as to the interest.acquired by Arms in ,said Grand Central mining property. Kimberly claimed that this acquisition, to the extent of Arms' interest therein, was partnership property, in which he was entitled 00 share. This claim was denied by Arms, who insisted that it was purchased on his private account. Thereupon Kimberly, in September, 1881, filed his bill in this court, charging and alleging that Arms' interest in said Grand Central mine was partnership property; that Arms had agreed with him in advance to make the purchase on joint account, and, after it was acquired, had repeated that he had made it as agreed. Kimberly sought to have his interest declared, and for an account of profits. Arms answered the bill, denying the alleged agreement to purchase said interest on joint account, and insisting that it was well understood and agreed between himself and Kimberly that said purchase was made solely on account of himself and said Fairbanks. As a corrobo.nation of his statement of the transaction, and as a further answer to the relief sought by Kimberly, Arms set up the defense that in March, 1880, there was a settlement of all partnership matters between himself and KiJilberly;that in that settle-
FEDElU.L i'REPOR'DER,
qe! did,r&l serve. to· nlllIlselT, /ls·,bI!;· aosolutepf,o:perty ,. Slud mterestm the Grand Central Oline,'etc.. Suchwere'th'e l'n.alh· issues madeyy.the '\'V/il;S.taken on"bothside,s,tbe 'parties, by consent, had the case referred to Hon. R. 'A; Harrison, as special-master, to hear the and deqideall the with directions to ,his repoft to the court in the j>remises,statingtherein separately the. special master made bis' his report to this court, fInding ge'nerally all the issues 'of fact and conKimberly. ,To; :this report the defendclusions of,:la;win £a\'o1' ants filed V/lrious exceptif.>hs. Said report, and exceptions came on for hearing before Circuit J usHce MATTIJ.;EWS, who exceptions, set aside the master's report, and dismissed the bill.· From this decree, Kunberly appealed' to the supreme court of the United States. The cause 'Was on appeal in, that court, imdon March' 5, 1889, a decision was: rendered, reversing the decree below and remanding the cause to this 'oourt,' with, directions to confitm the report. of the special master, and to take further proceedings not inconsistent with the opinion of the supreme court. See Kimberly v. Arma, 129 U. S. 512....530, 9 Sup. Ot. Rep. 355. In conformity with, and under the directions of, said mandate of the supreme court, this court, in Ma:y, 1889, confirmedsaidreport of, the special master, and. entered a final decree in Kimberly's favor, in accordance ,with its findings of fact and conclusions of law. ,The bill.ofreview,which defendantS now apply for leave to file, seeks to open, vacate, and set aside that decree. But before making said plication the defendantS, dut'ing the term of court at which said decree was rendered" prayed an appeal to the supreme court, which was allowed upon their giving bond, with sureties, to be approved by the court. Such appeal-bond was duly executed and approved, and said appeal, so far as this court is concerned, was thereby perfected before defendants presented this application leave to file a bill of review. Ris, however, stated in the bill of review which defendants ask leave' of this court to file that it is not the purpose of defendants, as' at present advised, to perfect their said appeal by filing the record and docketing this causein the supreme court, as required by the rules of practice of course, amount to an abanof that court. This averment does donment of said appeal; nor to a definite purpose or intention to do so, but leaves the question of; i,ts further prosecution 'to the option of appellants. . NQ new proceedings ,having been had in this court between the supreme cO\lrt and the decree based thereon, said appeal mandate of by defendants was no doubt improvidently taken' and allowed. Still, it has the effect of transferring the cause, and the decree Ilought to be reviewed, into the supreme. court, where it will remain until heard and disposed· of on the merrts,or dismissed,under:the provisions' of the ninth rule of said court,for appella-nts' failure to file the record and docket the' 'case; .The authorities settle that .anappeal,' in caSeS thus situated, wilL not be entertained by thesuprarne·oourt. . stewart v. SalamOn,97U. 8. 86:LjSWTrIIphl'ey v.Baker, 103 U.S. 736j Hinckley v. Mor-
KIMBERLY fl. ARMS.
551
ton, ld,. 7,64. , Withsaid:appeal pending in,the suprem13 court, whether, there rightfully or improvidently, this court clearly has'no authority or jurisdictiqn to entertain a bill of review to impel!-ch said decree, over which it has, for the present, at least, (no jurisdiction.] A party, cannot concurrently pursue the two remedies of appeal and bill of review for error apparent on the record, as the latter is only a stitute for, or in the nature of, a writ of error or appeal. It is accordingly settled (Ensminger v. Powers, 108 U. S. 302, 303, 2 Sup. Ot. Rep. 643) that while an appeal, is pending in the supreme court, although there is no 8upersedeas, the circuit court has no jurisdiction to vacate the in pursuance of the prayer of the bill of review, because such relief is beyond its control. The appeal of Arms and wife having taken t1).is cause, and the decree of, beyond the control, of ,this it of all anthority, pending said appeal, to grant the sought by the proposed bill of review, leave to file the same cannot, {or that reason, be properly granted. ',', Bnt, aside from this difficulty in the way of granting defendants leave to fl'le a bill of review, there are other objections, of a still more serious' character, to the allowance of their application by this court. The decree of May,'1889, Which the proposed bill ofreview seeks to impeach, is the decree, not of this cou,..t, 1mt of the supreme court; and, the only power which this court can rightfully exercise over the same IS to carry it into execution. Thus,in Stewart v. Salarrwn,97 U. S. 361, it is said that "an appeal will not be entertained by this court from ,a decree en:-, tered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such, a decree, when entered, is in efi'ect'ourq,ecree; and the appeal would be from ourselves to ourselves. If such an apPlilal is taken, however, we will, upon the application of the appellee, ,examine the decree entered, and, if it conforms to the mandate, dismiss the' case, with costs. If it does not, the case will be,replanded, with appropriate directions, for the correction of tJ:1e eiror. 1t So, in v.Baker, 103 U. S. 737, it is said: "The decree we directed is the final decree in the original suit, and the court below had nothing 1:.9 do but to carry it into execution,under the rule established bt Stewart Salamon." Even the objection of a jurisdiction oli the this court cannot 'be entertained in respect to a,cause remanded court for further proceedings. This was so ruled' at to it py the an early day in SkUlern's Ex'rs v. May'8 E,t'r8, 6 Oranch. 267, where, after. a case ,rewanded by the supreme court, with directions further that the cause was not one cOIn,ipg'withih proceedingstlierein, it the jurisdictiQn of the court. ,It was held, nevertbeless, court was bopnd to carry the mandate into execution. So, in Ex parte Story, 12 pe£.339, the, action of the court r,efusirig to allow the 4efendant to a'supplemen,talplea and answer setting up new matter was beGauf?e the case was before mandate from'the below was bound to execute the niandlj-te. Ilupreme court,and the To, thesameert'e¢l'Js' the 'pase'of Ex JJdrte SibbaId,lg. 488, where it'was held that" inferior' cc;)urt is bound , thedec'ree, [of the ' ; supreme J' . by '
FEDERAl, REPORTER,
court,]as the law ofthe case, ahd must carry it into execution, according to the marldat,e. They cannot vary it, or examine it for any other purpose than execution, or give any other or further relief." In Ex parte RailTOad Co., 1 Wall. 69,theco1.ut below, after entering judgment according to the mandate of the supreme colirt, granted a motion for a new trial upon affidavits' of new and material facts; but the suprelile court issued a mandamus commanding the lower court to vacate and set aside the order awarding said new trial, on the ground that the authority of the court extended onljt6 the execution of the mandate. In that case it was said by the supretne court: ":,
"When tbis court. under tJIe twenty-fourth section, j)f the judiciary act, of a case stated, and brought ,here on error, remanding reverses a tbe case, with a mandate to the court, belo,w'to enter judgment for the defendant, the court below has no authority but to execute, tbe mand'ate, and it i!l final in that colirt.Hence sucb court cannot, after entering ajudgment, hear affidavits or testimony and grant a rule for a new trial; and if it does grant such rule a m.ar,damus will ,issue from this court. ordering it to vacate the rule." By reference to this case, it will be seen that it was originally tried upon an, agreed statement of facts, resulting in a judgment for plitintiff. The sued out a error to the court, which reversed judgment of the court below, and remanded, the case, with a mandate to the lqwer court to ellter judgment for the defendants.' The court below entered judgmentforthe defendant. Ther,eafter the plaintiff filed affidavits showing new facts,and moved the cotut for a new trial, which was granted. But the supreme court issued its rnandarnus to said court, it to vacate the order granting such new trial. If the judgment'in qtiestion had been in any sense the judgment of the lower court, its authority to award a neW trial upon newlycdiscoveredand material facts could not have been questioned. But, as the jUdgment enin pursua.nce of the mandate 'was that of t4e supreme court, the district court was without authority to vacate or set it aside for apy,error law or new matter of facts. The principle announced in the foregoing a'uthorities is essential to the close ,and proper subordination of inferior to superior courts, to the orderly administration of justice, and to the prevention of interminable litigation. In harmony with this rule laid down in the above decisions, it is settled that the granting of leave to file a bill of review for error oflaw apparent,or for newly-discovered evidence, rests in the sound discretion of the court. It may be refused alth.ough the facts, if admitted, would the decree, where the court, considering all the circumstances, m,aydeem it unadvisable. Story, Eg. PI. § 417, and cases cited. As bills ofre>;,iew for error apparent and for new matter only filed by leave of the court, must properly be applied for:ll,ndprocured from the court whosedecree is complained of. In the present case the mandate of the supreme court not only directed an absolute and final de.cree in Kimberly's favor, but, under th.e authorities, made that d,ecree the judgment or decree of the supreme court. This court hlis no authority
KIMBERLY fl. ARMS. \
553
to review or vacate that decree for alleged errors of law apparent on the face of the record, nor can it properly entertain such It bill for newlydiscovered evidence until application has been first made to the supreme court, which pronounced or directed the decree, and its leave obtained to file the same. The court rendering the decree should prope!ly exercise the discretion of granting or withholding leave to the unsuccessful party to file a bill of review to impeach or set it aside eitber for error apparent or for new matter. The inferior court should not be called upon to exercise such discretion. or to grant such leave, in respect to a decree of a superior court, over whose judgment it possesses no control or right of supervision. It is accordingly the better'if not the settled practice, in cases like the present, to require the application for leave to file a bill of review to be made tothe supreme court. Thus, in Southard v. Russell, 16 How. 570, the supreme court, speaking by Justice NELSON, say: "As already stated, the decree sought to be set aside by this bilI of review in the court below was entered in pursuance of the mandate of this court. on an appeal in the original ,SUit. It is therefore the 4ecree of tllis court. and o.ot that primarily entered 'by the court below. that is sought 1;6 be interfered with. The better opinion is that a bill of review will not lie at all from errors of law aIlpged on the face'of the decree after the judgment of the appellate court. 'These may be corrected.by adirectapplicatiun to that court, wnich vouldamend. as matter of course. any error of the kind, that might have:oc:curredin entering the decree. Nor will a bill of review lie, in the cJ¥le of newly-discovered evidence. after the publication or decree below. wheroli.decision has taken place on an appeal, unless the right i,s reservlld in the decree of the appellate court, or permission be given on an application to that cOlirt directly for the pu rpose. T'his appears to btl the practice of the cou1't Ofl chimeery andhous6 of lords in England,and we: think it founded on principles. essential to the proper administration of the law, and to a reasonableter,mination of litigatiljl;n betweeJ;l parties in chancery suits. Neither of these pre-. requisitfs to the filing of the bill before us have been observed." The court cite numerous cases, English and American, in support of the rule thus announced. Counsel for applicants claim that the cases cited do not sustain the court's conclusions. We need not, however,go into the consideration of that question, as the rule laid down, whether supported by the authorities cited or not, is binding upon this court. But by reference to the caSe of Bat-bon \" Searle, 1 Vern. 418, eited by Justice NELSON, it will be seen that the rule laid down in Southardv. Russell conforms' to the practice of the English chancery court. In that case a bill of discovery was filed for the purpose, of bringing thehouse of lords. on bill of review , a deed which complainant alleged had ,been' burned pending the appeal in the house of lords. It was alleged that the defendant had destroyed this deed; and complainant asked for a discoverY,to the end that he might submit the fact to the house of lords upon an application for leave to file a bill of review to vacate its judgment in the case. The chancellor ordered the defendant, to answer as to whether or not he had burned the deed; but he further ordered ' that the case should proceed no further without specialleave,:which was done for the purpose of the complainant to bring before the lords the suppressed deed, in making application td that appellate
FEDERAD 'REPORTER, I
"No arguments were used, nor:anthority adduced, to show that the chan!ce11or had the power to elMarge or modify the decree made by the appeal court. Nor, can <lonceived; ,for, if he had power to alter. in the smallest particular, tbe the same, power would have authorized him to reverse}t which wpl.11d involve" manifest absurdity," etc.
courtfMcleav-eto file a bill of PMllW. So, too; Raoul,lMcCOrd, Eq. 22.;..29,'whel'e an application was made to the chanoery court tdmodifyor change the decree or judgment rendered by the appellate court, COLCOCK, J., said:·' .
Thesupreme,court, incase: of U. S.v, Knight, 1 Black, 489, reassert the rule laid dowriiocSouthard v. RU88eU, and say upon this question, as to theeorrect practice. in: cases like, the present: .'. "The final the discovery of new evidence, may, after a in this coudi,iobtain leave hereto tile ,a hill of review in a court tbe whichtlliscQurt had
.... In 6brif6rmitY with: the rule announced inSouthard.v. RU88ell, andU. 'v;1fn1{}.'.mi.':petit. .. . r,e p:resented't?. the suopreme CO.:O'rt... in.:thecases .. of J;'\Val!, 509, and Rubber Co.v. Goodye.ar, .9 Wall. 805 ,askiQg wr: Wi bills for alleged erl'prs in the judg. ments We,tJ;link authorities establish a final decree has b'eentmtered in an inferior .apd' in ?f,a ,mandate from' the' stl.preme court, obtamed from the a. bill. of .of the.defel.Lteli party,; ,toV$cat!3 or ann;qJ· .such ."Any otneJ::. ru.le of practi!le would reverseithe order of judicial procedure,:.and pertnittbe subordinate trion' the decree' of its stiperioror appellate court. · deny shch a!1 apphcabon Many cDie Where leave to reVIew its declsJOnshould prop:erlybe granted.· ·I.t'/ -,Couusel fOr· defeudants! insist that this rule of .requiring .application for leave to fileabill:ofvteview, in cases like the present, to be made to · the sttpreme>(lo1al1't, is; not uniformlyobserved,ll.nd:that at most'it is administrittive,'·l'atbertlui.1iJ. jurisdictional.. HecitesilRicker v. Powell, 100 :0, 8.104, in. whichit'is.chtimed that a:.billof review was allowed after decree below ,bad been idfhm·td iu,the'supreme oourt; ...But it 'will he seen oy refereoC"e,to,the':caie that Rieker; who filed a bill of. review, did · rlotappeal,to-::tbe' supreme.oourt; thatfthere was no judgment of that oourt'as to himj:'that,thedecree which.he:soughtto review ,was not the deoreeof the COlJlrl, but solely Pond only of the circnitcourt, ,SOfal'RS Ricker,WQS concerned, enter.t:ain . a; bill jof:.review·withotlt in:anyfwase'-contravening the rule laid down in South,'ard: IV· RWMeU. ,Whether! the, rule under -consideration is administrative rtat-her tbanjurisdictibnal,. it is not· important to determine. : The. mate,! rial question, is; shGwd :thi'Si court,: in respect to,:decreesof .the :supreme ,'colirt,. exel'cise:thErdiseretion 'of :granting ileaV'e to attack such.d-ecrees, 'or ·&houldsucih:leave be;'obtained fromtlie court}Vhich pronounced the i I: Weare clearly qt.: :theopinion that the !tpplicatioluhould
55S be made to, and eourtin the praseIit case, before this court can' the filing' of, the proposed bill. 'But, aside from thedbjection that defendants ,have not made their application for leave to the right court, it appears from the proposed bill of review that the errors of law alle/;!;ed to exist in the case are nothing more than supposed erroneous deductions or conclusions from the evidence. A· bill of. review will not lie to correct such errors. The ,only questions open for examination on bill of review for errors of law.6nthe face of the record are such as arise on the pleadings, proceedings, and decree, exclusive of the evidence, which cannot be looked to or ered.The party setting up error apparent as ground of relief cannot go intotbe evidence at large to establish objections to the decree founded: on supposed' mistake of the court in its deductiohl'l from the evidence. Whiting Bank, 13 ,Pet. 6; Buffingtonv. Harvey, 95 U. S. 99; Sheltrm v. Van Kleeck, 106 U. S. 532,1 Sup. Ct. Rep. 491·. Again, if the discretion vested with this court to grant the plied for, the proposed bill of review is fatally defective in not averring or alleging tbat the defendants have,either performed.or are unable, by: reason of poverty or otherwise, to perform the decree rendered against them. In . Ricker Powell, 100 {T 104, It is said that" the ,rule is weUsettled, subject, however,'to some exceptions, that 'before a bill of review ,* * * can be filed the decree must· be obeyed and per. formed. ,,* * * Thus, if money is directM to be paid, it ought to be paid before the bill of review is filed, though it may afterwards be ordered to be refunded.''' Afterciting numerous authorities the court quotes, from Chancellor' Kent as follows, (page 108:) "This 'appears to DEl a settled 'rule, laid down both In the ancient and modern bookS; but the petitioners have paid no at'tentionto this rule. for tht're is noofl'er to perform any part of, the decree,oreven to bring the money into collrt.,orany'pretextof 'PQverty, want,of Ilssets.:or·othef iI1ab,i1ity to do Thereis 8,uch. a,prqvlslon, and. it ollght to be dRIy I'lnforced.. Its objectis to prl'vept ab,uae in theadminMratlon of bi.lil,ing'ofbills of review for delay and. 'vexation, or otherwise protractl:ri8 the litigation, to the discouragement and distress of the adverse party." '
,t.
The rule thus sanctioned bythesnpreme conrt is neither chan/;!;ed not modified by what was, said and decided in Dams v. Speiden, 104 U. S. 83-87. In that case .the com plainant in re\'iew had brought himself within general rule by showing his inability to perform the decree. ,So far ,from intending to qualify the rule as laid down in Ricker v. Powell,the court expressly' declares that no bill of review will .be admifted unless the party first, obeys' and performs the decreei and gives!bond tor Satisf)' C<IIstsanddamagesof delay, unless in case ·of poverty, etc. While this rule is. administrative, rather' than jurisdwf' tional, it is still generally incumbcntnpona party to show! performanee or inability to perform the dt'cree before leave will be granted him to file a bill ofreview such decree. In the present case the decree required defendants ,to transfer stqcks, .and. to·· pay ,ovel' to. compla.i.nant,
ODERAL REPOBTEB,
Kimberly, considerable sums of money. No performance, or inability to"perform the decree, is alleged by defendants. For this reason, this application should be denied. The newly-discovered evidence and fraud relied on by defendants as grounds for impeaching such decree are so intimately connected that they may ,be considered together. "It is alleged in the proposed bill of review that Kimberly falsely and fraudulently antedated a certain letter, written, or purportedto be written, by himselfto defendant Arms, which was introdUMdin evidence as part of·said Kimberly's proof, in rebuttal of the de. fensethat by the contract o.fMarch 4, 1880, and the written instrument prepared by Arms on March 5, 1880, reserving to ,himself the interest in the Grand Central mine, Kimberly could make no claim to said ,interest. Said letter of Kimberly purported to notify Arms that he would not nize Arms' right to said interest, but claimed a sbare thereof himself. This letter; it is charged, was written in July or August, 1881, but was falsely and fraudulently antedateq to July 22, 1880, fortbe purpose, as alleged, of,:showingthe prompt repudiation or disaffirmance of the March, 1880, contract made by Kimberly, :or his agent, and embodied in saidinstrutnent'M March 6, 1880. Kimberly and one Wolfkill testified to the writing·and mailing of said letter at or abouttbe: time it bore date WoIfkill now makes affidavit, exhibited witb the proposed bilLof review, tbat'he and Kimberly committed perjury'in what they stated in their depositions about said letter having been written in July, 1880; that'it ,vas in· fact a year later, etc. ,It is alleged that this false testimony, aud fraudulently antedated letter, was material testimimy in the case, and greatly influenced and controlled the special master and the court in reaching their conclusions in the case., Defendants claim that they had no means, by the exercisE)ofany diligence on their part, to discover these facts before the final decree, and that they. have only recently been disclosed by said witness Wollkill, etc. As newly-discovered evidence, these faCts would hardly be sufficient to sustain a bill of review. in this case, when Considered in connection with the realissuebetween the parties, ttn<Uhe groUnd on which the supreme court rested its opinioll and IPllin controverted' question raised by the pleaditlga was whether the interest in the Grand Central mine or stock was purchased by Arms for the joint'account of Kimberly and himself, as a partnership, or for ihis private individual account. Kimberly claimed tbat.it was understood and agreed between them that said; interest should be quired on joint account, and that it was so acquired. This was denied by Arma; The spe(jial master and supreme court found this issue in ftlvor of KimberlY.iNeither rested their findings of fact or conclusion of right in and to 8aidinterest upon the allaw establishing leged false, and fraudulent, and antedated· letter. It was itl no sense made,or considered a controlling fact or circumstance by either the spe. cialmaster or bythe'supreme court: The 7th, 8th,an<;l 9th findings of the special master estliblisbed Kimberly's right to the relief he sought; for tHey found the agreement as claimed by KimberlYt__thatsaid inter. est was be, andwlls·. purchasedonjoint or partnership account, and l
KIMBERLY". ARMS.
557
as a result, that Kimberly was entitled, to his -share thereof, and or the profits or dividends received by AnTIs therefrom. Turning to the opinion of the supreme court, (Kimberly v. ATm8, 129 U. S. 525, 9 Sup. Ct. Rep. 355,) we see that these findings of the special master are sustained. The court say: "We are therefore constrained to hold that the learned court below failed to give to the findings of the master the weight to which they were entitled. and that they should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict 'with the weight of the evidence upon which they were made. That there was no sl,l,ch conflict is manifest. Upon nearly every important particular relating to the partnership between Arms and E:imh,erly; and' its business, there is hardly any discrepancy in the testimony of the parties. It is only as to the circumstances under which Arms obtained his loan frolli'Fairbank, with which he:purchasedthe shares in the Grand Central Mining Company, that there is any serious dispute; and, as that transaction is viewed as the act of a partner or agent of the lirm. or as the act of the individual, without regard to such partnership, the conclusion is If the findings are taken as reached as to his liability to account correct, there not being sufficient evidence to justify a disregard of them, there is an end to the controversy; for, in accordance with them, the firm had an interest1n the shares pllrchase4, and the complainant an equitable right tohiB proportion upon its dissolution. But, independently of the finding, the facts, ,which undisputed, or sustained by a great preponderance of evidence, must, to the same conclusion." ,
Thl:' opinion then sets out the facts establishingthe agreement to purchase-on joint account, and, after reviewing the transaction, states' that "under these circumstances the purchase must be deemed to have been made in the interest of the partnership." :And on pages 528, 529, the court say they attach no importance, as against the conclusions reached, to the instrument of March 5, 1880, in which Arms undertook to reserve said interest to himself, as his absolute property, and to which the alleged false and fraudulently antedated letter related. It cannot, therefore, be properly urged that the newly-discovered evidence,' even ing it to be of a satisfactory character, relating to the antedating of said letter, is of'such a material, important, and controlling character astojustify either this or the supremtl court in granting Arms and wife leave to file a bill of review to· open the decree in the case. The remaining ground on which the defendants rest their application is the alleged fraud on the part of Kimberly in concocting and antedating the letter bearing date July 22, 1880, and the false testimony given by himselfand his witness Wolfkill in relation thereto, which it is claimed greatly influenced the special master and the supremecoui't in reaching a conclusion adverse to defendants. The courts have not, and cannot, accurately define the acts done, or facts concealed, which will constitute such ftaud as will vitiate or invalidate judgments and decrees. It may, however, be stated generally that where a successful party has by medi.tated and intentional contrivance kept the opposjng side and the court in ignorance of material and controlling facts, whereby he has secured an unjust advantage, or a decree adverse to the real merits of the controversy, a court ofequity will entertain a bill to impeach and annul such
FEDERllL 'REPOBTER,
,vol. 40.
,decree: : This is substal'ltiaffly the rule laid down ,irLthewell"considereq of "Patch ,v. Ward,L.:R"S Ch.203.' But itisi the set aside a judgment because it was foundeq,on a frl;l.udu,llint instrument or perjured, evidence, 01' for any matter which was actually presented and considered in the judgment assailed. ,Vance y. Bur101 U. 8.519; U. S. v-. Throclr:mor.ton, 98 In the latter :case 'the act oHraud relied, on to support the billw-as the false and fraudulent>antedating of the grant; so as to impose on the court the belief that itlU! riiade:at a time when the party or official executing the same had pO""er Wmttke it, and the'sppporting ofsuch false docuwitnesses. ,'Page 62.', ,But there ,other controlling JQ,cts in tbecase, and the supreme c94 affirmed the ,decree of the circuit court sustaining a: demurrer to the bill and dismissing it'on the merits. The case, in its general aspects, cannot be distinguished'in' pIinciple from that under Consideration. ,The bill, of review ,s6ugpt t() be filed, V read in the ligllt of thefaciS found by the spethe sUln'eJUei,cot;r(,'and, the conclusions drawn therefrom fa,vp.l':o(,Kimberly's right, to ahare in Grand central purchase, is insuffioieJilt to impeach the: :decree, it very clearly appears that the alleged fraudulent leW'lr, and perjured evidence in connection therewith, 'were not controlling fa.cts in or leading thecotii't to the conclusions reached on the metHs. Again, it is settled that in order to obtain equitable relief against'll. judgment alleged to have been fraudulently 'obtained, it must be averred and ·shown that there is a valid deJenseon the merits. White:v. Orow,110 U. S.184, 4 Sup. Ct. Rep. 71. In view af'the 7th, 8th, and9,th of the special. master, which the supreme court, in its opinion, sustain as ,manifestly correct from the evidence, the defendantshavenotandeannot show that they have any valid defense on the merits.' The antedated letter, and, false testimony inrelatioD thereto,- if true, ,would faIlsbort of showing a valid .defense ontq,e merits, While a bill of review' based solelyon.jraud in obtainthe decree compJainedoC may be tileclJ:without of the court whieh, rendered Buch decree, because SUQb!8 bill is, regarded as an orig'inalbiH, in thennture only of a bill of review, still,wheie that ground of relief is united in the same bill with' others, which require the previ,ous leave of the court, the bill cannot be separatedintopams., and leave be granted ,as to part and to other parts. ,The application is for leave to file the bill as a whole, and U must be acted upon as a whole, and' not in parts. Thesuprellle court: take this view of such applications. Thus; in RiCker v. PoweU" 100 U. S. 109, it is said: . .. The application was torle/lvl:'· to file the bill as a whole'land not in parts; leave. the part which. if it stood alone. could be and' if,ll8,j\! whole, it put on file without. Ipust) stand or faU have been : . ' ; r ; ; '
, In'the present: casethEl<application is for leave to file the bill of review 'as' a Wbole\ and, as the part based upon fraud,even if Buch fraud .were Buffieient; standing alone, to be filed' without leave, cahnot be separated fram, the' branches, .w nich' require'tbepreviou!lleave ,of.· the court,
M'CLASKEY 11.'
559
it must stand or faU with the other grounds to which it is attached. It may be doubted whether it is in consonance with proper practice' thus to join or unite in one ,bill several different and distinct grounds of review, which invoke different relief under each branch, and separate defenses to the several parts oithe bill. The object and effect of that branch of the bill resting on fraud is to vacate the decree in toto, not to retry the case; and the fraud should be of such character as to warrant that relief. The object and effect of a bill of review for error of law apparent upon the face of the record is to reverse the decree so far as erroneous, and ,to retry ,the cause upon the original reoord, while the purpose and effect of a bill of review based upon newly-discovered evidence is to suspend the decree. and retry: the cause u'pon the original and new proof. Moore: :v. Moore, 2 Yes. Sr. 596j OatteraU v. Purchaae. 1 Atk. 290j Coole v. Bamfield, 3 Swanst. 0h. 607. To unite these three grounds of review and relief in onell.nd the sanie bill must lead to great oonfusion, and render the bill multifarious. Perry v. Phelipa,17 Ves.183j Campbell v. Mae.. kay,l:Mylne & 0. 618jAttor'1liey GMeral v.College, 7 Sim. 254. Upon whoJe case, as presented by the ,record andh}' the proposed bill of review, tQe:courUsclearly of the opinion that thedet'endant's application"'fol! leave to ,file said bill of review shQuld not be granted, and it is denied, with costs.
McCL:A.SKEY et al.lI.BARR' 11 <I '
t
(mrouit Cowrt,8. .";',J;;
D. OM.o. W. D. December 4,,1889.) , , ' , > ',' , , ,
I,r.:;::
, '
, ","
'" A prayer thQt each of the may be relluired to answer unto the prem!o 'BEJlIiln. a bill for rei,ief," 00i. ng: a I!:ood general,interrogatoty, complainants areentli" w an answer of. their bill. ' , .' .· . .", . ' , "
,: ,,: Thedoctrill.e that 'exceptions to the answer for insuftlciency are confined to ClUles . ;whelje to ,defen.dants ,to prove t?eir C&II8.aJ;ld are I\oi properlytaken w;hereall the matters }VhichcomplauliUlts ask dISdOvery are of recoM, does DOVapplyio tiillsfor relief.' ';' ,8. Srnu:...,..PARTITION-IDIBcOVERT. , ;J;n a bilUor partitipn. that CQmplainants an,d defendants are tenants in oommori of the land Bought to M llartitioned, being in support of. complainants' uefendantsare bGund todiBcov.er their title in answer·tlilereto; (l ': : : .1;
u
InE4uity., ,Bill for ipartition. ,I Q.:W; C'Qtqan, H{fI.fJfJ,rd Ferris, andH.P.:Fay, for complainants., kLincoln and Batema;n & Hatrpef, for defendant. ,ILi:
SAGa, ,J. ,This cause :isbefore the court upon exceptions for insum-
, deney t9the answer ofthe defendant John Keeshan to the second amended . bill:" and to the amendment thereto. " There are 24 exceptions. ,Itis not it'C9inewithin the ordinary lWlits of an opinioll, The bill is for . There are ,2,00 ,or