Hill v. Watson

The opinion of the Court was delivered by Haskell, A. J. In this cause a final order was set aside by the Circuit Judge, after the lapse of considerable' time, on motion, upon the ground that the order was erroneous in law. The authority for such proceeding relied on by the Circuit Judge is the Act of 1869, p. 214, re-enacted in the General Statutes, (Rev. Stat., 497): “In case a judgment or decree has been or hereafter shall be rendered by a Court of Common Pleas or Equity, it shall be lawful for either party, plaintiff or defendant, to move before the presiding Judge of the circuit in which said judgment was obtained to vacate or set aside said judgment, upon satisfactory proof being made to said Judge that said judgment is erroneous and ought to — 273 — be set aside; and upon" sucb proof being made, the presiding Judge is hereby authorized to vacate and set aside said judgment and to order a trial de novo.” It is unnecessary to recite the rest of the Act. The Court has been but little aided by argument or authorities on either side in this case; but as the Act seems to have caused considerable doubt and confusion, it is well to have a conclusion upon it, and it will receive as much attention as the pressure of the labor on hand admits. Both in the Court of law and that of equity in this State there had been previous to the passage of this Act power under certain circumstances to set aside judgments or decrees and to grant a trial de novo, or a rehearing, or a new hearing by bill of review, as the ease might be. All the power which had previously been in the two Courts was, by the Constitution of 1868, vested in the Court of Common Pleas, with some exceptions unimportant, and which do not bear upon the question, but the distinct modes of procedure were preserved, although in the same Court, until by the adoption of the Code of Procedure, in 1870, the proceedings were merged and became identical in form. It was in this interval that the Act of 1869 was passed. It is plain that the Act was intended to make the mode of procedure the same in both Courts, and the mode adopted was, by motion, the same as it previously had been in the Common Pleas, but differing from what it had been in equity, where the application for a rehearing before decree filed was by petition, and after decree filed was by bill of review, which could not be filed until leave was granted. The two years’ proviso limiting the time in which a motion for “a new trial” may be made needs no consideration here, and it is doubtful on the face of the Act whether it legitimately relates to the preceding portion. Beyond this change in the mode of procedure, by which- the same method is prescribed to both Courts, it is difficult to see any new law in the first portion of the Act. It confines the Judges to facts as the only grounds upon which the motion may be granted under this Act, for it says “ upon satisfactory proof being made to said Judge that such judgment is erroneous and ought to be set aside, and upon such proof being made, the presiding Judge is hereby authorized, &c.” “Proof” taken literally is the “perfection .of evidence,” (Bouv. L. D.) or is the “effect of evidence.” — 1 Greenleaf on Ev., § 1. But as in common use the end is often confounded with the means, so in language “proof” is — 274 — often used as a synonym with “evidence,” and in this ordinary sense it manifestly is used in this Act, which, then, would read “upon satisfactory evidence.” Evidence “in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.” — Ibid. Questions of fact alone are susceptible of proof, and when technical words are used in a statute they must be given their technical meaning. The Judge, therefore, would be confined to the consideration of facts in arriving at his conclusion whether the judgment is erroneous and should be set aside. The Act confers no further power than the decision of what is satisfactory proof. It is not even the proof of facts satisfactory to his mind, but it is proof satisfactory to his mind of facts upon which the law would pronounce that the judgment is erroneous and should be set aside. There are, however, some errors of law in the proceedings or judgment which are established by the proof of facts, and which may be included within the meaning of this Act. We will best explain them by briefly stating the principles which controlled the practice both in law and equity. It was a settled proposition of law “ that motions to set aside judgments for irregularity, defect or error are competent before our Court of Common Pleas in all cases where the writ of error would be in England. See Mooney vs. Welch, (1 Mills, 133,) in which case substitution of a motion here in open Court in the place of a writ of error there is fully considered and decided, and has been acted upon ever since; Barnes vs. Branch, 3 McC., 19.”—Mills & Co. vs. Mills & Dickson, 6 Rich., 487. The subject is discussed in every form in the numerous cases which naturally arose. See Surtell vs. Briliford, 2 Bay, 333; Mooney vs. Welch, 1 Hill, 133; Muir vs. Murhead, 2 Brev., 215; Posey vs. Underwood, 1 Hill, 263; Henderson vs. Dial, 1 McMullan, 293; Ingram vs. Belk, 2 Rich., 111; Ingram vs. Belk, 2 Strob., 208; Williams vs. Lanneau, 4 Strob., 27; Haigler vs. Hay, 2 Rich., 324; Crane vs. Martin, 4 Rich., 251. The practice in all the cases is regulated by the rules which govern in cases of writs of error in England, and the grounds upon which the judgment may be set aside are the same. The English practice (which is our own) is best expressed by quoting from a leading authority on practice: “If a judgment in the King’s Bench be erroneous in matters of fact only and not in point of law, it may — 275 — be reversed in the same Court by writ of error coram nobis or qua coram nobis resident, * * as where the defendant, being under age, appeared by attorney, or the defendant was a married woman at the time of commencing the suit, or died before verdict or interlocutory judgment; for error in fact is not the error of the Judges, and reversing is not reversing their own judgment. So upon a judgment in the King’s Bench, if there be er,ror in the process or through the default of the clerks, it may be reversed in the same Court by writ of error coram nobis. But if an erroneous judgment be given in the King’s Bench and the error- lie in the judgment itself and not in the process, a writ of error does not lie in the same Court upon such judgment.” — Tidd’s Pr., 1056-8. So in 2 Saunders, 101, note: “Error may be brought in the same Court where the judgment was given when the error is not assigned for any fault in the Court, but for some defect in the execution of the process or through the default of the clerks. ****** goa error may be brought in the same Court for an error in fact. * * * But if the error be in the judgment itself and not in the process, a writ of error does not lie in the same Court, but must be brought in another.” The reason why the same Court as gave judgment can set aside the judgment on error of fact, fraud, misrepresentation, duress, abuse of process, &c., (Posey vs. Underwood, 1 Hill, 263,) is “ because error in fact is not the error of the Judges; therefore the reversion of such judgment is not reversing their own judgment.”— 2 Sellon’s Practice, 400. Thus, the proceeding may be had in the same Court where the error lies in mistake or deviation from the truth in matters of fact or in mistake or deviation from law by parties or by the subordinate officers of the Court during process. These latter may be called errors in law, but they are not errors of law in the judgment, for they occurred not in the judgment, but in process, and must be apparent in the record. The mode of procedure in equity by which to set aside a decree and get a rehearing or new hearing is distinctly stated in Simpson vs. Downs, 5 Rich. Eq., 421. If the application be made before the filing of the decree, it must be by petition and for a rehearing; if after the filing of the decree, the remedy can only be had by application in proper form for leave to file a bill of review. — 276 — The most recent case in which the power of the Court on the question of rehearing is distinctly stated is that of Hunt vs. Smith, 3 Rich. Eq., 465. On page 540, “a bill of review,” says Dargan, Ch., who delivered the opinion, “and a motion for a rehearing are entertained on similar grounds. There are but two grounds on which either of these proceedings will lie: First. They will be entertained on account of error of law, apparent upon the face of the decree, and any part of the record may be resorted to for the purpose of making such error of law in the decree manifest. * * * The other ground upon which a bill of review or a motion for a rehearing will be entertained is newly-discovered testimony.” He then proceeds to discuss the character of the testimony. The rule as thus laid down is much stronger than in any of the preceding cases. But the application was made to the Court of Appeals for a rehearing by that Court, and was made before the decision was rendered or pronounced. With this explanation the rule is entirely in accord with that laid down in the case of Jeanñnerett vs. Radford, (Rich. Eq. Cas., 469,) by the learned Chancellor before whom the petition for rehearing was heard, and by whom the difference between the rules in the English practice and our own is most clearly stated. On the rehearing he thus states the rule: “ It was decided by the late Court of Appeals in equity that after a full and final hearing the Court is not at liberty to open cases for rehearing on account of error in the decree.—Burn vs. Poang, 3 DeS., 596. The present Court of Appeals, in the case of Haskell vs. Raoul, (1 McC. Ch., 22,) held the same opinion. The Court, to be sure, decides on the ground that the specific motion had been disposed of by the former Court, but strongly intimates the concurrence in the doctrine established. If the Court of Appeals cannot rehear its own decree, it would seem to follow that this Court cannot rehear a decree sanctioned by that Court. In England there can be no rehearing after an appeal to the House of Lords. But by the Act of Assembly of 1808 orders and decrees of the Judges not appealed from ‘ shall have the same effect with decrees sanctioned by the Court of Appeals.’— 7 Stat., 304. I think that I ought to rehear so as to correct any apparent error of a decree delivered by myself, provided the application be made before the time for appealing has elapsed. * * I have said ‘a decree made by myself,’ for my authority to rehear the decree of another Chancellor for error apparent would be more than. questionable.” * * * See also Hinnin vs. Pickett, (2 Hill — 277 — Ch., 351,) which was a case where the ground for rehearing was newly-discovered evidence. In Manigault vs. Deas, (Bail. Eq., 283,) the point decided' in Haskell vs. Raoul is affirmed — “ that a bill of review will not lie for error in law apparent on the face of the decree. This is a point regarded as settled, and both policy and the safety of suitors require that it should not be open for argument.” The motion for rehearing before the decree is filed is analogous to the motion for new trial at the same term before judgment entered up, and the correction of error of law apparent upon the face of the decree is governed by nearly the same rules as the correction of judgment, as in Mooney vs. Welch, (Mills, 133,) for error apparent upon the record. It must be such an error in law, apparent on the face of the decree, as is “obvious on a mere statement, when the correction can be made consistently with the. principles of the decree itself.”—Perkins vs. Lang, 1 McC. Ch., 31, note. In this State it has never extended further since a Court of Appeals in Equity has been established. The remedy has been by appeal, and by the Act of 1808 the orders and decrees of a Chancellor sitting on circuit, when not appealed from, have ever had the same force and effect as decrees of the Court of Appeals. Where a decree was impeached for fraud, or to be set aside or suspended for error in fact, the proceeding was by original bill. To this remedy the Act of 1869 would apply, and the grounds for the motion could be established by evidence. The Code of Procedure, adopted in 1870, and re-enacted, together with the Act of 1869, (the latter, that of 1869, being altered by the omission of mention of the Court of Equity, and being applicable only to judgments in Common Pleas,) provides, by Section 197, special remedy in case of “mistake, inadvertence, surprise or excusable neglect,” provided the application be made within one year after the party has had notice of the judgment, order or other proceeding of which he complains. The Code, in Title II, Chapter I, Revised Statutes, p. 654, further enacts (Section 349) that “the only mode of reviewing a judgment or order in a civil or criminal action shall be that prescribed by this Title.” The only exception to review by appeal is in the case of orders “ made out of Court without notice to the adverse party.” The view that we take of the Act of 1869 as it was enacted, or as it was re-enacted in the Revised Statutes, p. 497, confines the — 278 — meaning of the Act to the method of procedure, and recognizes in it no change in the legal grounds upon which the relief either at law or in equity would previously have been granted or refused. There is no error apparent on the face of the decretal order made by the Circuit Judge in 1869, nor is error of fact, fraud, abuse of process, mistake or surprise alleged. The decretal order sustained the constitutionality of an ordinance and statute which were after-wards pronounced to be in violation of the Constitution of the United States. No appeal was taken from the order, and it is the law of that ease just as much as if it had been confirmed by the Court of last resort.—Duport vs. Johnston, Bail. Eq., 279; Johnston vs. Britton, Dud. Eq., 274; Act 1808, 7 Stat., 804. But it is needless to cite further authority than that already adduced upon so well-established a proposition, which has not been changed or altered by the Act of 1869. The judgment appealed from is reversed and the motion granted. Willard, C. J., and Molver, A. J., concurred.