Kinsell v. Feldman

Wright, J. By the demurrer it was claimed that the court had no jurisdiction to entertain such a petition, after appeal to and judgment in this court; that the application was made too late; that plaintiff failed to use diligence to obtain this testimony; that it was cumulative, not sufficient to change the result; and, finally, that there was no equity in the bill. I was ready to hold in McGregor v. Gardner, 16 Iowa, 538, that a bill of this nature would not lie (whether for errors apparent or for newly discovered facts), either in the District Court or this court, after appeal and final decree here; and this opinion I still entertain. And especially so, when the unsuccessful party has been heard, as in this case, upon his petition for rehearing. I know of no case, nor of any practice, warranting a bill of review under such circumstances. But, without committing the other members of the court to this view (and because they are not, I will not further discuss it), I state that we are all prepared to hold that the demurrer was properly sustained upon another ground. The testimony, that which is claimed to be newly discovered, is strictly, and by every legal definition of the term, cumulati/oe. No authority has been referred to, nor have we been able to find any, justifying a review for such a purpose, or to enable a party to add to his former evidence. We have, in effect, held otherwise, and the authorities are in accord therewith. Graham v. Dixon, 16 Iowa, 310; McGregor v. Gardner, id. 538; Youngs v. Keighly, 16 Ves. 398; Livingston v. Hobbs, 3 Johns. Ch. 124. The general allegation of fraud against defendant cam weigh nothing, because when the pleader undertakes to. particulaiize, he fails to show any thing of the kind. Did he use any artifice or fraud to prevent plaintiff having a, [500] full and fair trial ? It is alleged that after the decree, and when his wife’s relatives were for the first time making known what he had said, he “ effected a reconciliation, since which time nothing can be heard from them.” This was after, and hence could not have tainted the decree with fraud. Affirmed. Beck, <L, having been of counsel, took no part in the consideration of this case.