Whelan v. Cook

Miller, J., delivered the opinion of the court : A creditors’ bill was filed May 17th, 1859, against the administratrix and heirs-at-law of John Cook, deceased, for a sale Of his real estate to pay debts. The defendants answered February 22d, i860, denying the alleged indebtedness and pleading limitations and usury to the claims of the complainants exhibited with their bill. A commission to take testimony was issued June 23rd, i860, and on the 23rd of *March, 1865, at the regular March Term, the defendants obtained rules upon the complainants for “ further proceedings and security for costs ” under which the bill was dismissed on the 5'th of July following. On the 15th of February, 1866, after enrolment of the order of dismissal, a petition was filed by the appellants, asking leave to file a bill of review, and from the order dismissing this petition the present appeal is taken. The rules of the court below are made part of the record. The appellants have considered their remedy to be by a bill of review and the case must be disposed of in view of the rules of equity practice applicable to such bills. A bill of review can be brought only for error in law appearing on the face of the proceedings or upon the discovery of new matter pressing upon the decree subsequent to the period when it could have been used : and in such case there is a [8] qualification of equal importance with the rule itself, that the matter must not only be new, but such as the party by the use of reasonable diligence could not have known for if there be any laches or negligence it destroys the title to relief. The courts have uniformly and rigorously adhered to this qualification, deeming it better that individual injury should be inflicted in particular cases, than that rules established to prevent general mischief, should be broken down. Young v. Keighly, 16 Ves. 348; Wiser v. Blachly, 2 John. Ch. 488; Story’s Eq. PI. sec. 414. These settled rules of equity practice must govern this case, and we now proceed to consider briefly the grounds, alleged in the petition and presented in argument, upon which it is supposed a bill of review will lie to vacate the order dismissing this bill. 1st. The allegation in the petition that no copy of the rule “ further proceedings ” was ever served on the petitioners or their solicitor, and that the first notice they had of the dismissal of their bill was in January, 1866, is fully answered by the 10th rule of the court below, which dispenses with service of a copy of a rule like this and requires the solicitor to take notice of it. *2nd. It is alleged in the petition that two of the complainants died prior to the 23rd of March, 1863, and it is insisted the defendants should have taken steps to make their personal representatives parties to the cause before laying the rule further proceedings. This objection presents neither error in law nor new matter. There is nothing on the face of the proceedings showing these parties were dead at the time the rule was laid and the order of dismissal passed, nor did the cause abate by their deaths. Code, Art. 16, sec. 1. It was no more incumbent on the defendants than upon the surviving complainants, to suggest their deaths and take the necessary steps to bring in the personal representatives. If the complainants had done this in answer to the rule, “ further proceedings,” the bill could not have been dismissed. 3rd. Another objection is that the rule “ further proceedings ” could not be laid after the cause was at issue, and whilst there was an outstanding commission. This rule has been adopted in our chancery practice as a substitute for the English practice of motions to dismiss for want of prosecution. Whether under the ordinary chancery practice in England or [9] in this State, such a motion could be made or such rule laid, after the cause is at issxxe and a commission issued, we need not determine, because this case must be decided by the rules of court appearing in the record. Rule 25, is “ that at any stage of the cause where further proceedings are proper to be had on the part of the complainant, the defendant may obtain a rule for such further proceedings,” etc., and Rule 4, provides that commissions for taking testimony shall be returned on or before the first day of the first term after their date, if issued within thirty days before such first term, if not, then to the first day of the second term, “ and if not so returned a rule or order may be obtained for the return thereof at such day as shall be limited, or on application such commission shall be considered void and a new commission shall issue, or other order as may appear proper, provided that when such commission shall not be returned'it shall prima facie be considered *the fault of the party who had the carrying of such commission.” This commission had been outstanding nearly five years before the rule was laid. It is true the parties agreed it should be issued to a named commissioner, who should at a particular place take such proof as might be adduced on either side, and it is also true that on the 6th of May, 1863, the parties agreed that certain interrogatories then filed on the part of the complainants should be used in the examination of witnesses under the commission to be that day executed. But these agreements did not release the complainants from the position of parties having “ the carrying of the commission ” under Rule 4. Under the pleadings the defendants stood upon their answer, denying the indebtedness, and the complainants were bound to prove their claims — the commission was their commission— and these agreements were made for their benefit. It was their duty to have the commission executed and .returned within the • prescribed time, or make application to have it declared void and a new one issuéd. We think such steps on their part are further proceedings, for which a rule to that effect was properly laid under Rule 25, and that by the taking of such steps this rule would have been complied with. This ground of error in law must therefore fail. 4th. 'It is further alleged “ that the proof taken under the commission was in the charge and custody of the commis [10] sioner who for several years was beyond the jurisdiction of the court, and remains in his custody up to this time ; that some of the complainants have made every effort to procure the said proof from time to time and have failed so to do, but they are now informed and so state that within a few weeks past the commissioner has found the proof taken by him, and that he is now able to return the same to be used upon the hearing of the cause.” We cannot regard this as an allegation of new matter coming within the rule of practice before stated. It does not present the case of papers or documentary evidence lost and but recently discovered, but simply that of *oral testimony reduced to writing and retained in the custody of the commissioner who for a long time was absent from the State. There is no allegation nor is there any thing in the record from which the inference can be drawn, that by the use of reasonable diligence, the same proof could not have been obtained from the same witnesses by a new commission issued to a new commissioner. No efforts in this direction are alleged or appear to have been made, and it would be a wide departure from the settled rule to receive this allegation as sufficient ground for a bill of review. 5th. Another reason has been presented in argument, viz.: that one or more of the complainants being residents of Virginia, a State at that time engaged in war with the United States, were alien enemies, and the right to prosecute their claims was thereby suspended, and it was error therefore to dismiss their bill. There is nothing in the record to show that more than one of the complainants was ever a citizen of Virginia, and he came in by petition and exhibited his claim on the 6th of May, 1863. In his petition he states he was “ of the State of Virginia,” from which we infer he was at that time a citizen of that State, and residing therein. We assume the war existed as alleged, and the Supreme Court in the Prise Cases, 2 Black, 635, and in subsequent decisions, have unquestionably so determined ; but the same authorities have also decided that this war commenced in 1861, and continued till long after May, 1863, when this petition was filed. Hutchinson v. Brock, it Mass. 119, cited by the appellants’ counsel in support of their position, was a suit involving title to land instituted before, and the plea of alien enemy interposed after the commencement of [11] the war of 1812. The court .on demurrer held the plea bad because it concluded with a prayer of judgment of the writ and that the writ abate, the court holding that the effect of such a plea is not to abate the writ or defeat the process entirely but to suspend it — that the plaintiff’s right was not forfeited by the declaration of war, but the remedy was suspended and that he was not to *be answered on his demand until the restoration of peace. But whilst so deciding, the court at the same time, recogonize and adopt the established doctrine of international law, that “ the comity and intercourse every where permitted and enjoyed among Christian and civilized nations in a state of peace are at once withdrawn by a declaration of war”— that “ the territories and courts of justice of belligerent nations are closed against each other to the exclusion of their respective inhabitants and subjects,” that “ an alien enemy shall maintain neither real nor personal action donee terree fuerint communes.” And in Wells v. Williams, 1 Ld. Raym. 282, cited in this Massachusetts case, Ch. J. Treby said, “that wars at this day are not so implacable as heretofore, and therefore an alien enemy who is here in protection may sue his bond or contract, but an alien enemy abiding in his ozm country cannot sue here.” It would be strange international law, and a strange application of the effect of war to allow an enemy abiding in his own State to bring suit during the war in our courts, and then, because of the war, grant him greater privileges than are extended to our own citizens when suing in the same courts. Such a position cannot be sustained. The bill was, therefore, properly dismissed under the rule “ further proceedings,” and it is unnecessary for us to examine whether the rule “ security for costs ” was correctly laid or not. We have found no sufficient grounds alleged in the petition upon which a bill of review can be sustained, and have, therefore, had no occasion to refer to the answer to the petition, and do not mean to decide the question of practice whether on such an application the answer can be considered.' Order affirmed. Stewart, J., dissented.