Keenan v. Strange

GOLDTHWAITE, J. 1. When a chancery cause is remanded from this to the subordinate court, with directions, that particular proceedings shall be had — as in this instance, that a reference may be made to the master — we think the .officer of the subordinate tribunal is not invested by force of [293] the order of this court remanding the cause, with authority to act in the matter of reference independent' of the further direction of the court to which he is attached. The mandate of this court is to the subordinate court, and the future action of that tribunal is governed by the directions given. There are forcible reasons why the practice should be thus, and not the least so arises from the circumstance that the chancellor may prescribe when the reference shall be made —the proof on which the master is to act — the notice the parties shall receive, &c. &c. ■ Independent of the other questions raised, on the record, we consider the reference in this case was made by the master, and without any order to that effect from the chancellor, that is sufficient to reverse the decree, or or in other terms; the exception to the master’s report on this ground should have been allowed. 2. This result being attained, we shall proceed to consider whether the decree rendered by this court on a former occasion precludes the chancellor from setting aside the default and letting the defendant in to make a defence by answer. It seems to us, that when a decree in a chancery cause is reversed, and the cause remanded for something further to be done, preparatory to the final decree on which execution may be had, the cause when it reaches the subordinate court, stands there precisely in the same condition as if that court in the first instance had rendered the same decree as afterwards pror nounced by this court; with the exception, however, that the decree is no longer the subject of revision by writ of error. This indeed, is the evident meaning of the statute, which requires this court to render judgment according to the right of the matter, and award execution, unless it be necessary that facts be ascertained, &c. [Dig. 255, <§> 4.] Considering the decree rendered upon the writ of error as that which should have been rendered in the first instance by the chancellor, the question arises, whether he has the power to open the default, and let the defendant in to make defence by answer. The most forcible objection to the existence of this power is, the difficulty, with its allowance, of ascertaining when a chancery decree is final of the controversy, and the rights of the parties fixed. It must be conceded there is [294] great weight in this objection, if the power was now claimed for the first time, yet it cannot prevail against a continuous current of decision, establishing and reconizing the power. In England, it has been held that a decree pro confesso, had for the want of an answer whilst the defendant was of unsound mind, might be set aside. [Benson v. Vernon, 1 Ves. Sen. 206.] And this too notwithstanding the decree was enrolled. [Kemp v. Squire, Ib. 208.] Even when the decree is on the merits, it has been set aside on a showing of surprise in the party affected by it. [Stevens v. Guppy, 1 Turn. & R. 178.] The decisions in the American chancery courts are generally to the same effect. Thus in New York, a decree by default, enrolled and acted upon by selling under it, has been set aside and defence put in by answer, when the defendant had omitted to defend by the mistake of his counsel. [Malepaugh v. McBride, 7 Paige, 509; Tripp v. Vincent, 8 Ib. 176.] In Virginia, it is said to be the proper course of practice to open the decree whenever there is error which cannot be corrected by a rehearing, or on a bill of review. [Erwin v. Vint, 6 Munf. 279.] Even the neglect of counsel to attend at the hearing, has, in England, been considered a sufficient ground to open the decree. [Robson v. Cranwell, 1 Dickens, 91.] We find nothing repugnant to the course of practice indicated by these decisions; but it is argued here, that a decree having been pronounced in this court upon the merits, this is subject to no revision here or elsewhere. The cases in the supreme court of the U. States, of Exparte Sibbold, 12 Pet. 492, and Washington Bridge Co. v. Stewart, 3 How. 413, are conclusive, if indeed any authority is required, that decrees of appellate courts cannot be reviewed by the courts themselves, in the proceedings of the same cause at a subsequent period. But that principle, in our judgment, is not presented here. The decree is, and must continue to be the law of the case as then presented; but this does not preclude the parties from applying to the primary court for leave to introduce matter upon the record which the justice of the case requires should be there, and which it would be a reproach to justice if there was no means to place there. [295] Without further extending this opinion, we think the decisions referred to are quite sufficient to show, that courts of equity possess the power to open a decree passed even on the merits, when a sufficient cause is shown, and the suit is not entirely ended between the parties. Whether relief could be afforded by opening a decree, where the subject matter had passed beyond the control of the court, or its decree was executed, we need not determine. Our judgment in the present case is, that the chancellor possessed the power to set aside the default, and let the defendant in to make the defence by answer; but we decline to \ enter on the question, whether the refusal would be revisable on error. When the cause returns to the chancery court, the defendant can renew and have a decision on his motion. For the error already referred to, the decree is reversed and the cause remanded.