Rice v. Carey

By the Court. Warner, J. delivering the opinion. It appears from the transcript of the record in this cause, that a bill was filed in the Superior Court of Twiggs county, against the Banli of Columbus and others, by Charles H. Rice, receiver of the assets of the Bank of Macon, and a decree had thereon upon the final hearing, which was duly enrolled. Afterwards, a bill of review was filed in that Court, by Edward Carey, as-signee of the Batik of Columbus, to reverse the decree for error apparent upon the face thereof. To this bill of review, a demurrer was filed by the defendant, which was overruled by the Court, to which the defendant excepted, and prosecuted his writ of error to the Supreme Court. At the June term of the Supreme Court at Hawkinsville, the plaintiff’s writ of error was dismissed for want of proper parties. Rice, the receiver of the assets of the Bank of Macon, then filed his bill of review to reverse the decree made in the cause, on the hearing of the demurrer to the first bill of review, for error apparent on the face of that decree. To this last bill of review the defendant filed his plea, in which it is alleged, that after the decree was made by the Court overruling the demurrer to the first bill of review, the complainant, in the last bill of review, sued out and prosecuted his writ of error in the Supreme Court, to [569] review and correct the errors in said decree, returnable to the June term of said Supreme Court at Hawldnsville, in the year 1847, and at the said term of the Supreme Court, by the order, decree and judgment thereof, the said writ of error was dismissed, and the said decree in said complainant’s bill of complaint set forth, and now sought to be reviewed and reversed, was then and there virtually affirmed by said dismissal, which said judgment of dismissal, is now of file and of record in said Supreme Court, unrevolted, and in full force and effect; all of which' matters and things the defendant avers to be true, and pleads the same in bar to the whole of said bill of complaint. To this plea, the complainant demurred, which demurrer was overruled by the Court below ; whereupon, the complainant excepted, and now assigns the same for error in this Court. Three questions have been made on the argument of this cause for our consideration and judgment. First, as to the effect of the dismissal of a writ of error in the Supreme Court, under the provision of the amended constitution. Second, whether a bill of review will lie in this State, to reverse a decree in Equity, for error apparent on the face thereof, after such decree has been affirmed by the Supreme Court; and third, as to the sufficiency of the plea filed in this case. [1.] When a writ of error is sued out and prosecuted to the Supreme Court, it operates as a supersedeas to all further proceedings in the Court below. The plaintiff in the judgment in the Court below, is delayed in the further prosecution of it, until the decision of the Supreme Courtshall be had thereon. The framers of the Constitution intended to prevent all delay, after the first term of the Supreme Court, except for providential cause. The first section of the third article of the Constitution declares, “ And the said Supreme Court shall, at each session in each district, dispose of and finally determine, each and every case on the docket of such Court, at the first term after such writ of error is brought; and in case the plaintiff in error in any such case, shall not be prepared at such first term of such Court after error brought, to prosecute the same, unless precluded by some providential cause from such prosecution, it shall bé stricken from the docket, and the judgment of the Court below shall stand affirmed.” JPrince’s Dig. 909. It was urged on the argument, that the writ of error was not [570] beard in the Supreme Court on its merits, but was dismissed on a technical ground, for want of proper parties. The answer to that argument, is to be found in the mandatory language of the Constitution. The plaintiff in error was not prepared, at the first term of the Court, after error brought, to prosecute the same for the want of the proper parties, and the want of proper parties was not a providential cause ; therefore, the writ of error was dismissed, and by operation of the organic law of the land, the judgment of the Court below stood affirmed, as effectually as if the cause had been heard on its merits, and a judgment of af-firmance solemnly pronounced by this Court. In Haines vs. the State of Georgia, 2 Kelly, 290, we had the same question presented, and we ruled in that case, that the dismissal of the writ of error for irregularity, operated as an affirmance of the judgment below, under the peculiar provisions of our amended Constitution, the leading feature of which, is to prevent delay in the prosecution of suits, by. the organization of the Supreme Court, after the first term of the Court, after error broughl, except for providential cause. [2.] The decree of the Court below having been affirmed, the next question is, whether a bill of review will lie ./or error apparent on the face of the decree, when the decree has been before the highest appellate tribunal in the State, and an affirmance had thereon. A bill of review is in the nature of a writ of error, and its object is, to procure an examination and alteration, or reversal of a decree made upon a former bill, which decree has been signed and enrolled. Story on Pleading, 320, Section 403. In Mitford on Pleading, 69, the learned author says, “ A bill of review upon new matter discovered, has been permitted even after an affirmance of the decree in Parliament; but it may be doubted, whether a bill of review upon error in the decree itself, can be brought after affirmance in Parliament.” Mr. Justice Story, after citing the foregoing passage from Mitford, gives as a reason for the rule, that the highest appellate Court has pronounced in effect, that it is not erroneous. Story on Pleading, 325, Section 408. When we take into consideration the declared policy of our people, as manifested by their organic law to prevent delay in the administration of justice, we entertain no doubt in holding, that a bill of review will not lie for error apparent on the face of [571] a decree, when that decree has been before the Supreme Court on a writ of error, and the judgment of the Court below has been affirmed. [3.] It is urged as an objection to the plea, that it does not set forth the entire record of the judgment of the Supreme Court. If this was a plea of aiformer recovery in bar of the complainant’s suit, the objection might be valid, and the authorities cited applicable, but it is not a plea of a former recovery in bar; the object of the plea is, to bring to the knowledge of the Court a leaching Juet, which does not appear on the face of the complainant’s bill. The leading fact brought to the knowledge of the Court by the plea is, that a writ of error was sued out from the judgment of the Court below on the demurrer, to the Supreme Court, and by that Court dismissed, which is distinctly made to appear on the face of the plea, in such manner, as to enable the complainant to take issue thereon, had he thought proper to have done so. The demurrer of the complainant to the defendant’s plea, admitted that there had been a writ of error prosecuted to the Supreme Court from the decree made by the Court below, on the demurrer to the original bill of review, and that the same had been dismissed in that Court; and when the Court below ruled the dismissal of the case in the Supreme Court affirmed the judgment of the Gourt below, it did nothing more than obey the stern mandate of the Constitution, and did not err in dismissing the complainant’s bill. Let the judgment of the Court below be affirmed.