State Fair Ass'n v. Terry

•Huí, C. J., (after stating the facts.) Bill of review may be filed without leave first had and obtained when it is to review errors of law apparent upon the face of the record; but where it is to review the finding by reason of newly discovered evidence, leave must first be had. Jacks v. Adair, 33 Ark. 173; Webster v. Diamond, 36 Ark. 538; Wood v. Wood, 59 Ark. 441; Bartlett v. Gregory, 60 Ark. 453. It is in the sound discretion of the .court to grant leave to file a bill of review. 2 Beach, Mod. Equity, § 867. • Whether the chancellor can look beyond the petition and supporting affidavits is elaborately argued at. bar. It is not necessary to go into that question, because the petition incorporates the allegations of the bill, and refers to the tendered bill for examination, and facts are derived from the petition and bill itself which render the action of court in refusing leave to file it proper. The petition shows that Joseph Townsend died after the decree, intestate, leaving a mother and half sister and brothers as his heirs at law, and that their names and residence were then unknown to the petitioner. None of the original parties to the bill are made parties to the petition or bill of review except W. J. Terry, guardian of Joseph Townsend. Terry is described therein as now being in possession of the lands in controversy as administrator of Joseph Townsend, but there are not even proper allegations to show a due appointment of him as administrator. The relief sought is the recovery of the. real estate upon payment to Terry as administrator or such person or persons as may be entitled thereto of the amount due as found in the original decree for the bonds presented with interest, less the rents and profits of the real estate. Terry, as guardian of a deceased person, represented no one. The guardianship terminated upon the death of Joseph Townsend, and Terry’s sole duty as such guardian then consisted in making proper settlement of his trust in the probate court. Price v. Peterson, 38 Ark. 494; Rodgers on Domestic Relations, § 942. It is.thoroughly settled that all the necessary parties to the judgment sought to be reviewed must be parties to the bill of review; and if they are dead, their representatives must be parties. Story’s Equity. Plead. § 420; 2 Beach, Mod. Eq. Pr. § 873; Turner v. Berry, 8 Ill. 541; Frily v. Hendricks, 27 Mass. 412; Cincannon v. Noble, 96 Ind. 326; Sloan v. Whiteman, 6 Ind. 434; Barber v. Armistead, 35 So. Rep. 199; Bank of U. S. v. White, 8 Peters, 262; Ralston v. Sharon, 51 Fed. Rep. 702; Puller v. McParland, 6 Heisk. 79. The term “legal representatives” will mean the executor or administrator, if the subject-matter is personalty, and heirs or devisees if it is fealty, so far as this class of causes is concerned. Cockran v. Cockran, 127 Pa. St. 486; Ralston v. Sharon, 51 Fed. Rep. 702; Johnson v. Van Epps, 110 Ill. 551; Turner v. Berry, 8 Ill. 541. Upon the death of a party the title to his real estate passes at once to his heirs (subject, of course, to right of creditors to be worked out through the administrator), and the administrator cannot represent them in court. They are necessary parties, where the title to real estate is involved, and the court should, of its own motion, refuse to proceed till they are brought in. Anderson v. Levy, 33 Ark. 665; Theurer v. Brogan, 41 Ark. 88; McCauley v. Six, 34 Ark. 379; Sisk v. Almon, 34 Ark. 391; Chowning v. Stanfield, 49 Ark. 87. As shown in the statement of facts, there was no attempt made to bring in Penzel and the other parties to the original bill except Terry, and his powers had ceased. • If a liberal construction was given the petition and bill, it might be inferred that it was intended to serve summons on all the original parties. It is a substantial right preserved to parties to a decree that it cannot be reviewed for vices not apparent on the face of the record without leave first had and obtained of the court, and a petition for such leave must be filed and all parties to the judgment given notice thereof. 2 Daniell, Chancery Practice, 1578; 2 Beach, Modern Eq. Pr. § 868. The only notice here given was to Terry, and that is only shown by himself in the response, and not by the petitioner. Notice to him as guardian was unavailing, and notice to him as administrator insufficient, and, as stated, no notice is shown to have been given to any qí the other necessary parties to the decree, even if it be conceded that the bill would have made them parties. It is unavailing to say that they could have been brought in afterward, because they had a right to be heard in limine; and no presumptions are to be indulged that the bill presented would be afterward amended to be sufficient. A majority of the court are of opinion that some of the other points presented are also fatal to the maintenance of the bill, but it is unnecessary to discuss them, as this is a question meeting the appellant at the threshold, and is fatal .to the relief prayed. The decree is affirmed. Mr. Justice Battee concurs in the judgment.