Jorgenson v. Young

ROSS, Circuit Judge, after stating the case as above, delivered the opinion of the court. We are of the opinion that the judgment of the court' below was right, for several reasons. The judgment in the original suit was entered February 1, 1902; the bill of review was not filed until April 11, 1904 — long after the time for an appeal from that judgment had elapsed. The rule is well settled in courts of equity of the United States that a bill of review must ordinarily be filed within the time limited by statute for taking an appeal from the decree sought to be reviewed^ where the review sought is not founded on matters discovered since the decree. Thomas v. Brockenbrough, 10 Wheat. 146, 6 L.Ed. 287; Whiting v. Bank, 13 Pet. 6, 10 L.Ed. 33; Kennedy v. Bank, 8 How. 586, 12 L.Ed. 1209; Clark v. Killian, 103 U.S. 766, 26 L.Ed. 607; Blythe Co. v. Hinckley, 111 F. [345] 827, 49 C.C.A. 647. This bill is not founded on matters discovered since the original decree, for it shows upon its face that the complainant “surmised,” when the alleged false testimony was given, that it was not true. It shows, moreover, that the facts which the complainant contends show it to have been false were, in part, matters of public record, of which the complainant had at least constructive notice, and of which he might have had actual notice by going to the recorder’s office of the district. “The newly discovered evidence which may form the basis of such a review must be not only evidence which was not known, but also such as could not with reasonable diligence have been found, before the decree was made.” Hill v. Phelps, 101 F. 650, 652, 41 C.C.A. 569, and cases there cited. The language of the Supreme Court in denying a petition to file a bill of review, in the case of Dumont v. Des Moines Valley Railroad Co., 131 U.S. cix, 25 L.Éd. 520, is also pertinent. The court there said: “This application is denied. The petitioners have not shown such diligence as will entitle them to reopen a litigation that has been carried on with so much pertinacity for a great number of years. The new matter relied upon consists principally of record evidence drawn from the archives of the government, which might as easily have been found at the time the controversy arose as now. The treaty was a part of the law of the land, and the maps and official reports have been on file in the proper government office, where they were discovered, for a quarter of a century. We are all of the opinion that, if a bill of review should be filed containing all the averments that are in the present petition, it ought not to be sustained. Clearly, then, leave ought not to be granted for a continuance of the litigation.” See, also, United States v. Beebe, 180 U.S. 343, 21 S. Ct. 371, 45 L.Ed. 563; Bailey v. Willeford (C.C.) 126 F. 807; Atkinson v. Connor, 56 Me. 546; Brooks v. Belfast Co., 72 Me. 365. Not only does the present bill show upon its face that the complainant suspected, while the alleged false testimony was being given, that it could be so shown by written power of attorney, but the only excuse given for not examining the records to see is that such records were not [346] kept in or near the courthouse where the case was being tried, and that an investigation as to the truth of the testimony would have required “an adjournment of the court, which the court would not have granted under the mere surmise of the counsel that such record did exist.” Such an excuse is hardly worthy of serious consideration. Besides, if the debt was not in fact paid, the existence or nonexistence of the power of attorney is immaterial. The real and only issue between the parties at the trial was whether or not the debt had been paid. Even if F. W. Young had been a witness upon that trial, and had testified upon that issue in favor of the complainant, the case made would only be one in which his testimony was in contradiction of that given by C. W. Young, and would, as a matter of course, constitute no ground for a bill of review. It is but fair, too, to say that it is possible that the written powers of attorney from C. W. to F. W. Young, which appear to have been executed several years prior to the time of the trial of the former action, may have been revoked, and that C. W. Young’s testimony on that trial may not, as a matter of fact, have been false. To all of which may be added that it does not appear what, if any, disposition was made of the motion made by the complainant in the former suit to vacate the decree now complained of, based upon the same grounds. The judgment is affirmed.