Axtell v. Pulsifer

Per Curiam: If the bill in this case should be regarded as a bill of review for error apparent upon the face of ■ the record, it can not be said that the pleadings of either party conform strictly to the rules applicable to such a proceeding. The bill states the substance of the bills, proceedings and decree sought to be reviewed, but does not make copies thereof exhibits to the bill. (Griggs v. Gear, 3 Gilm. 2; id. 541.) When the court is asked to determine whether error is apparent upon the face of the decree, there should be brought before it for inspection the record of the proceedings of the suit in which the error is alleged to exist. In bills of review for errors apparent on the face of the decree,.the decree is understood to include not only the final judgment of the court, but the pleadings also. (Ebert v. Gerding, 116 Ill. 216.) Hence a bill of review of this character should set out a complete copy of the bill, answer and decree to be reviewed, or, when it states their substance only, it should make such copy an exhibit. Judson v. Stephens, 75 Ill. 255; Goodrich v. Thompson, 88 id. 206. The answer in this case denies that the bill sets out accurately the substance of the pleadings and decree in the suit sought to be reviewed. Where a bill of review is for error apparent upon the face of a decree, an answer is not the proper mode of defense. Such a bill must state not only the former bill and the proceedings thereon, and the decree, but it must also state the point in which the party exhibiting the bill of review conceives himself aggrieved by the decree, and the ground of law upon which he seeks to impeach it. (Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433; Story’s Eq. PI. 420.) Hence, where the bill of review states fully and fairly the decree sought to be reviewed, a demurrer is the proper defense, because that amounts to an assertion that there is no error in the decree; but if the bill of review does not fairly state the decree sought to be reviewed, the proper defense is a plea of the former decree in bar of the suit and a demurrer to the vacation of the decree. “Ordinarily there is no answer to such a bill of review except in nullo erratum est.” Enochs v. Harrelson, 57 Miss. 465; Webb v. Pell, 3 Paige’s Oh. 368; 2 Barb. Ch. Pr. 98; Story’s Eq. PL secs. 634, 833; Puterbaugh’s Pl. and Pr. 262. But the main ground upon which the present bill seeks relief is, that the complainants, who were defendants in the former suit, did not have proper notice of the proceedings which resulted in the decree against them. They charge that they filed a general demurrer on August 4, 1884, to the original bill which was filed against them on July 10,1884, and that said demurrer was never argued or disposed of, and that they had a right to rely upon notice to call up said demurrer and dispose of it before any further steps would be taken in the cause. A rule of court in existence requiring that two days’ notice for hearing of motions must be given, when adopted as a rule of court, has, with reference to practice in that court, all the binding effect of a statute. The motion to set aside the order dismissing the bill for want of prosecution, the motion setting aside the default, the motion for order of reference and setting aside of same, and for leave to file an amended bill, were all motions which required notice to be given to the opposite party. Under the practice in this State, on a demurrer being filed to a bill in chancery, either the party filing the demurrer, or the complainant, may have the same disposed of, and under the rule in force in the circuit court of Cook county, notice must be given that the demurrer will be called up for argument, and if this. is desired to be done, either party may be justified in waiting until such notice is given; and if the demurrer was filed as alleged by complainants in this bill, the complainants in the original bill had no right to have a reference, or file an amended bill and take a default thereon, without notice to the party who filed the demurrer to the original bill, under such rule of court. We do not understand that the defendants here dispute the correctness of this proposition, nor is it contended that the defendants in the former suit had any notice of any of the orders or other proceedings in said cause after August 4, 1884. The defendants deny that a demurrer was filed to the original bill at any time. The whole controversy, then, narrows itself down to the question of fact, was a demurrer filed ? Whether the files of the original cause show a de-murrer on file when the present bill to set aside the decree was filed, or whether the proof showed that a demurrer had been filed and subsequently mislaid or lost, we are not advised by anything in this record. We are unable to say what the testimony was, as the record contains no certificate of evidence. It is not the duty of the party against whom the decree is rendered to preserve the evidence. On the contrary, it devolves upon the party in whose favor the decree is rendered, to preserve the evidence that will sustain the decree, or the decree itself must find that facts were proven which will sustain it. (Marvin v. Collins, 98 Ill. 510; Hughs v. Washington, 65 id. 245.) Although the defendants in error have omitted to obtain from the court and insert in the record a certificate of evidence, yet the decree finds that the former decree, entered on June 14, 1887, against the complainants herein, was erroneous and procured by mistake, and without giving the defendants therein, or either of them, an opportunity of being heard in their defense, and by depriving them of a day in court, and it also finds that a demurrer to the original bill was filed on August 4, 1884. We think that these findings bring the case within the rule laid down in Marvin v. Collins, supra, that where the evidence is not preserved “the decree must find specific facts that were proved on the hearing,” especially when the findings here are considered in the light of the admissions contained in the answer. The answer admits that the complainants in the original bill in the former suit took no default for more than two years after the defendants therein entered their appearance, and that more than a month before said default was finally taken the suit had been dismissed for want of prosecution, although it was subsequently reinstated upon the application of the complainants therein. If no demurrer had been filed it is difficult to understand why the parties interested in the prosecution of the suit should have been guilty of such delay in taking the default, to which, in the absence of a demurrer or pleading on the part of the defense, they had been rightfully entitled for so long a time. The decree entered in the present suit does not finally determine the rights of any of the parties upon the merits of the controversy, but merely vacates the decree entered in the former suit, and grants to the defendants therein the right to plead, answer or demur to the original and amended bills therein, leaving the right of the matter to be passed upon hereinafter upon a full hearing. Before the rendition of the final decree herein a written stipulation was entered into between the parties, wherein it was agreed that the complainants might amend their bill by inserting therein the word “mistake,” so that where fraud is charged the language should charge “fraud or mistake,” and that the answer of the defendants might stand as a full answer to the bill as thus amended. It is said that no order of court was entered allowing the amendment, and that there is nothing to show that the amendment was actually made. It is therefore urged that the finding of the present decree, that the former decree was procured by mistake, is not supported by a corresponding allegation of mistake in the bill. We think, however, that even though the bill, independently of the stipulation, may not have used the word “mistake,” its allegations that the various orders were entered and the various proceedings were taken while an undisposed of demurrer was on file, amount to allegations of mistake. The court made a mistake in entering the orders and rendering the decree because its attention was not called to the fact that the demurrer was on file, and if the parties who obtained the orders and decree were not guilty of actual fraud and deceit in concealing the existence of the demurrer, they made a mistake in taking the various proceedings already referred to while the demurrer was on file, without first disposing of it. The decree of the circuit court is affirmed. Decree affirmed.