Hendryx v. Perkins

PUTNAM, Circuit Judge. This case arises by an appeal from a decree on a bill, sometimes styled in the record a “bill of review,” filed pursuant to leave granted by the circuit court. Although, as — 804 — Mr. Perkins, the appellee, justly says, the bill is one of the class which may be filed without leave first obtained, we also may, for convenience, at various points, name it a bill of review. Perkins commenced a proceeding of some nature against the appellants in the courts of Massachusetts. The appellants removed this litigation to the circuit court, where the docket entries commence: “May term, 1884, May 15th, entered by defendants. Removed from state court.” The next entry to which we need call attention is that of April 14, 1885: “Bill for discovery filed. Defendants to answer within two weeks. Declaration at law filed, and transferred to law docket.” On June 12, 1885, what was styled a “supplemental bill” was “presented to the court,” and, on June 23d, “leave to file supplemental bill” was granted. On July 21, 1885, appears the following entry: “Answer to bill, amended so as to become a bill for relief, filed.” From this we draw the conclusion that what was styled the “supplemental bill” was, in effect, an amendment to concert the bill of discovery into a bill for relief. The next docket entry is, “Heard on bill and answer.” This occurred at Providence, in the absence of the clerk, so no date is given; 'but it was between July 21, 1885, and January 13, 1886, and, probably, on July 28th. This was followed by an opinion, on January 13, 1886, to the effect that the bill must be dismissed. The subsequent proceedings will be referred to hereafter so far as necessary. On June 29, 1885, it is alleged that an answer of some kind was filed by the present appellants, the then respondents, the true nature of which will be given hereafter. No replication had been filed, and the record before us does not show that the complainant moved to have the case set down for hearing. Therefore in that particular the record is, on its face, defective ; and unless, either expressly or by inference, this was waived by the complainant, he was entitled as a matter of right to a bill of review for error of law. But, ordinarily, the right to file a bill of review of this nature expires with the time limited by statute for an appeal. Thomas v. Brockenbrough, 10 Wheat. 146, 6 L. Ed. 287; Central Trust Co. v. Grant Docomotive Works, 135 U. S. 207, 10 Sup. Ct. 736, 34 L. Ed. 97; Reed v. Stanley, 38 C. C. A. 331, 97 Fed. 521; Id., 179 U. S. 682, 21 Sup. Ct. 915, 45 L. Ed. 384; Blythe Co. v. Hinckley (C. C. A.) in Fed. 827, 837; Story, Eq. Pl. (10th Ed.) § 410. The decisions with reference to this rule happen to have been applied to cases where, by the statute, there was an existing right of appeal. In the present case there is nothing in the record to show whether the amount involved permitted an appeal to the supreme court; but, assuming that it did not, there is, as we will see further on, nothing justiciable in the present proceedings with reference to any such error of law. The final decree in the original cause was entered on March 31, 1888, and, on October 13, 1897, after a lapse of more than nine years, the appellee presented his petition for leave to file the bill the proceedings on which are now before us. The bill, in some particulars, departs from the petition, and also it may be defective in some of its details. The appellants made a motion to strike it from the files by reason of these irregularities, and the motion was refused. We do — 805 — not, however, perceive any proper assignment of error on this point. The assignments to which our attention is called are of a too general character to raise technical questions of this nature. However, ⅛⅛ will all disappear as we go on. The gravamen of the present bill is that in the original cause the respondents filed an answer on June 29, 1885; that the complainant did, in fact, consent to a hearing on bill and answer, although the docket entries do not show it, but that it was his understanding that the hearing was to be on the bill and the answer of June 29th; that subsequently, and before the hearing, the respondents fraudulently withdrew that answer, and fraudulently interposed in its place the answer of July 21st; that the court, as well as the complainant, was unaware of the fraudulent substitution of one answer for the other; that the court understood that the complainant’s consent to a hearing applied to the answer filed on July 21st; and that it proceeded to hear and dispose of the case on the bill and that answer. The bill alleges that the court, as well as the complainant, was deceived, to use its language, by “the fraud, and trickery which were practiced upon him and upon the court.” What has been said constitutes the pith of this bill, although it contains enlargements of allegations which put the matter in somewhat different forms. These are confused, as will appear from the following extracts: “Your complainant did not know of this fraud and trickery which was practiced upon him and upon the court until January, 1886, when the court ordered complainant’s bill to be dismissed. The false and unlawful answer filed on July 21, 1885, denied every right claimed by complainant, and the true and correct amended answer to the hill for discovery and relief was never seen by the court. On July 28, 1885, complainant protested against any consideration being given to the so-called amended answer, filed on July 21, 1885, it being a second answer to the same matter, and was unlawfully interpolated among the papers in this suit after the cause was submitted to the court on hill and answer, and was not filed with the consent of the court, as it could only have been lawfully filed and considered.” “As the case now stands, defendants have, as a practical fact, been allowed to put in new testimony in their behalf, and destroy the old and correct testimony after the cause has once been submitted to the court; and this without the knowledge and consent of the court, and against the protest of complainant” These allegations do not weaken our statement that the gravamen of this bill is fraud. Although the complainant alleges that he protested against a hearing on the answer of July 21st, yet nothing of that character is made the basis of a specific and independent proposition ; and everything rests, on the background of the claim that the interposition of that answer was fraudulent. The decree on the bill of review was entered o.n December 13, 1900, in the following language : “This cause came on to be heard at the October term. A. D. 1899, upon the pleadings and proofs, and was argued by counsel for the respective parties, and now, upon consideration thereof, to wit, December 33, 1900, it is ordered, adjudged, and decreed as follows: “First That the final decree entered on the 31st day of March, A. D. 1888, in the cause in equity No. 2,023, he, and the same is hereby, set aside and vacated. “Second. That the copy of the amended answer filed on the 31st day of March, A. D. 1888, in cause No. 2.023, stand, and he treated in all respects as the amended answer to the bill for' discovery, ordered by the court on — 806 — June 23, 1885, and directed to be filed on or before June 29, 1885, and -which has been lost from the files of tile court. “Third. That all other papers, motions, and orders made or entered subsequent to the 21st day of July, A. D. 1885, the date of the filing of the answer to the supplemental bill in No. 2,023, be, and the same are hereby, stricken from the files and vacated, and that said cause stand upon the pleadings as they appear upon said 21st day of July, A. D. 1885.” This decree, as is permitted by the rules of the supreme court, contains no special finding, and therefore it, in form, adjudges the allegations of the bill in favor of the complainant, and, consequently, it, in form, adjudges that the respondents have been guilty of fraud as charged. We are advised by the opinion of the learned judge who sat in the circuit court that he found no fraud proven; that the complainant objected to any hearing on the bill and the answer filed on July 2ist; that the court had no right to set the case down for a hearing unless on motion of the complainant, or with his assent; that the hearing took place under a mistake of all the parties; and that, therefore, under the circumstances, he decided to take the responsibility of allowing the case to be reheard, leaving his action to be reviewed by the appellate court. If this had appeared of record in the final decree or otherwise, it would have shown only that the court granted relief on the ground of a common mistake, and not on that of fraud. The complainant (now the appellee) has filed in this court his brief furnished the circuit court on the hearing of the bill of review. This raised no point of the character found in the opinion referred to. The brief, after two preliminary sentences, opens thus: “The ground for this bill of review is based on alleged fraud practiced on the complainant, and also on errors of law apparent on the face of the case.” No other propositions were submitted. On the other hand, at the hearing before us, the appellants assured us thát in the circuit court no suggestion was made that relief was asked on the ground of mistake, and that that subject-matter was not in any way discussed or considered. Nothing in the record, or in any matter submitted to us on either side, indicates anything on the part of the respondents (now the appellants) waiving their right to have a determination based on the allegations of the bill. This right was, under the circumstances, of a substantial character, and could not have been held to have been waived except by some clear line of action leading to that result. Putnam v. Day, 22 Wall. 6o, 66, 22 L. Ed. 764, says: “A decree has to be founded on the-allegata, as well as probata, of the cause.” This, as is well known, and for the best of reasons, is especially applicable to bills in equity charging fraud; and the rule is most strictly enforced under such circumstances. Daniell, Ch. Prac. (6th Am. Ed.) *382. A party who charges fraud assumes a grave responsibility by reason of making injurious allegations, which he cannot escape by substituting another issue in lieu thereof. The only exceptions have been in some instances where the bill had a double aspect, so that, therefore, it might be sustained according to its other allegations, even if those charging fraud were not proven. In such cases the proper practice is to expressly dismiss the bill so far as fraud is concerned. This is fully explained in Archbold v. Commissioners, 2 H. L. Cas. 440, 460. It is clear, for the reasons which we have stated, that there is nothing — 807 — in the record which would justify us in looking at any questions except those raised by the complainant in the circuit court; namely, that the bill of review is “based on alleged fraud practiced on the complainant, and also on errors of law apparent on the face of the case.” We may well add that this view of the. pleadings and proofs relieves us from the necessity of carefully considering what powers courts can exercise for relief against mistakes, either by summary petitions or by formal bills of review. The substantial questions presented to us are threefold, namely: First. Whether the decree of December 13, 1900, now appealed from, is final, so as to be appealable; Second. Whether that decree involves a matter of discretion of such a character that it is not appealable; and Third. Whether, if we have jurisdiction, the merits of the case are with the appellants. Coming to the first question, the bill now before us is one to file which, as already said, no leave of court was required. It is in fact a bill to impeach a prior decree for fraud, and therefore it is an original bill, although in the nature of a bill of review. Story, Eq. Pl. (10th Ed.) § 426; Adams, Eq. *419; Daniell, Ch. Prac. (6th Am. Ed.) *1584. Of course, a bill to impeach a decree, when brought against the party who committed the fraud, by a person who has no interest in maintaining any affirmative adjudication, may merely annul the decree if it succeeds, because one who has imposed on the court by fraud may have no further right in the same proceeding with reference to the same subject-matter. But, when the fraud has been practiced by a respondent, and the complainant has an interest to secure an affirmative decree, a different rule prevails; otherwise the complainant might be left in no better condition than if the decree stood. It is therefore said in Story, Eq. PI. (joth Ed.) § 426, and Adams, Eq. *419, referring to this class of bills, that, where a decree has been obtained by fraud, the court will restore the parties to their former situation, whatever their rights may be. That is precisely the nature and effect of the decree now appealed from. The decree in the original cause was not merely set aside by it, but the parties were restored to their former situation in that cause. Therefore tlic frame of the decree appealed from, by necessity, terminated the litigation before us, so it was final in form, and in those respects it was correct. We have, then, an original bill, and a decree which terminates the litigation on that bill. It is difficult to see why, on principle, it is not appealable. The supreme court has several times said that a bill of this nature will lie in a federal court to set aside a judgment or a decree fraudulently obtained in a state court, and vice versa. Marshall v. Holmes, 141 U. S. 589, 596, 12 Sup. Ct. 62, 35 L. Ed. 870; Robb v. Vos, 155 U. S. 13, 38, 15 Sup. Ct. 4, 39 L. Ed. 52; Bank v. Stevens, 169 U. S. 432, 463, 18 Sup. Ct. 403, 42 L. Ed. 807. A statement of the rule is found in Arrowsmith v. Gleason, 129 U. S. 86, 100, 9 Sup. Ct. 237, 32 L. Ed. 630, being there repeated from a prior opinion, as follows: “Tlie court of chancery is always open to hoar complaints against it [that is, alleged fraud'l, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor — 808 — does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and, if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it.” .The fact that proceedings of this nature are of such a character that they may be maintained in the federal court in which the original bill was decreed on, without reference to the citizenship of the parties or other jurisdictional questions, does not contravene our propositions. This is fully explained in Carey v. Railroad Co., 161 U. S. 115, 128, 131, 16 Sup. Ct. 537, 40 L. Ed. 638. The citations there made show that, although this proceeding may be ancillary for jurisdictional purposes, it is original and independent in the chancery sense. Even if the bill in the proceeding appealed from had not been strictly original, and were only a bill of review, the decree, nevertheless, is, as we have shown, of such a character as to make it final. It leaves nothing further to be done in this cause. It reinstates the original suit on the pleadings as they appeared at the time of the hearing on bill and answer, and all other proceedings must be in that case. Our attention has not been called to any decision of the supreme court directly in point on this question under the precise circumstances of this case. So far as we have found any, they have been with reference to appeals from decrees which were necessarily final by their inherent nature, either because they refused relief, or because they directed a reversal of the decree on the original bill, with such further directions as left no opportunity for further proceedings in the original cause. Bank v. Ritchie, 8 Pet. 128, 142, 8 L. Ed. 890; Whiting v. Bank, 13 Pet. 6, 16, 10 L. Ed. 33; Craig v. Smith, 100 U. S. 226, 230, 234, 25 L. Ed. 577; Clark v. Killian, 103 U. S. 766, 768, 26 L. Ed. 607; Ensminger v. Powers, 108 U. S. 292, 305, 2 Sup. Ct. 643, 27 L. Ed. 732; Osborne v. Town Co., 178 U. S. 22, 32, 20 Sup. Ct. 860, 44 L. Ed. 961. Others related to bills impeaching judgments at law. Nevertheless, in view of all the considerations which have come to our attention, we hold that the decree in the present case was final for the purpose of an appeal. Coming to the second question, it is said that review lies in the discretion of the court of primarjr jurisdiction, and that, therefore, this decree is not appealable. There are two kinds of discretion, — one absolute, as in granting or refusing continuances, from which there is no appeal; and one of a judicial character, which properly affords the basis of revision by an appellate tribunal. With reference to bills of review which are filed, not as of right, but only on application to the court of primary jurisdiction, granted or not, according to its sound discretion, an appeal does not lie from the granting or refusal of the application; but when, afterwards, a bill of review has been filed, and proceedings in regular course have followed the bill, such proceedings become a matter of strict right. They are analogous to proceedings after a new trial has been granted. No authoritative statement can be found to the contrary. There are some occasional inapt expressions, but they arise from not clearly stating the circumstances, or the distinction between a petition for leave to — 809 — file a bill and the proceedings thereafter. Adams, Eq. *417» merely states that, “Where a bill of review is founded on the occurrence or discovery of new matter, the leave of the court must be first obtained.” This refers only to what precedes the filing of the bill. What Story, Eq. PI. (10th Ed.) says on this topic in section 417, is, of course, limited by section 412, to the effect that leave of the court must be obtained before a bill of review can be filed on the ground of newly discovered matter. The court, in Rubber Co. v. Goodyear, 9 Wall. 805, 806 19 L. Ed. 828, was speaking of an application made to itself for leave to file a bill of review below. This concerned that class of cases in which it has been held that, after a mandate has gone down, the court below cannot entertain a bill of review without the consent of the appellate tribunal, — a rule which was fully expounded by us in Re Gamewell Fire Alarm Tel. Co., 20 C. C. A. in, 73 Fed. 908. Therefore, even if the present case were one of a bill of review, properly speaking, of the class to which the leave of the court must be obtained before one can be filed, the exercise of unappealable discretionary powers would end with the granting of the application therefor. But we have here, as we have shown, an independent and original bill, asking independent and original relief, which might have been filed as a matter of right, and as to which no mere discretion is exercised at any stage. While neither Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797, nor Phillips v. Negley, 117 U. S. 665, 6 Sup. Ct. 901, 29 L. Ed. 1013, relates to the setting aside of a decree in equity, yet they are so closely analogous to the case at bar on the question of finality, and also on the question whether the action of the circuit court was so far within its mere discretion as to be unappealable, that the principles which they recognize seem quite conclusive in favor of the results which we have reached. In Bronson v. Schulten the action of the circuit court vacating a judgment entered at a former term was reversed, and that court was directed to restore it. Phillips v. Negley, however, is so much fuller on both propositions involved that it does not seem necessary to dwell on Bronson v. Schulten, except to say that it pointedly called attention to the fact that any peculiar practice of state courts is not to be considered. Phillips v. Negley will be better understood by examining the facts as stated in the same case, 2 Mackey, 236, and the opinion of the court there reported. The special term of the supreme court of the District of Columbia, after a vacation following the entry of a judgment against the defendant Negley, set it aside, as appears in 117 U. S. 668, 6 Sup. Ct. 902, 29 L. Ed. 1013, “because of irregularity, surprise, fraud, and deceit.” The record also shows that Negley had had no hearing on the merits. At the general term, according to the opinion in 2 Mackey, 236, an appeal was dismissed on the ground that the opening of the judgment was not a finality, and was a matter of mere discretion, thus involving the two principal questions we have already considered, although at law, instead of in equity. These facts are well stated by Mr. Justice Matthews in 117 U. S. 671, 6 Sup. Ct. 901, 29 L. Ed. 1013. The United States supreme court, however, held that the action of the special term was appealable, and that what it did in — 810 — setting aside the judgment was void, suggesting, however, at. pages 678, 679, 117 U. S., and page 907, 6 Sup. Ct., 29 L. Ed. 1013, that Negley had, perhaps, a remedy by a bill of the class now before us. The result was that it reversed the proceedings of the supreme court of the District of Columbia, and remanded the cause, with directions to dismiss the motion of the defendant to reopen the judgment. Coming now to the third question, — that is, the merits of the case, —we have already shown that the gravamen of the present bill is alleged fraud on the part of the present appellants. As we have also already shown, the only grounds of relief which were set up in the circuit court, and which can be within the four corners of the bill of review, are fraud and errors in law arising on the face of the record in the original cause. It is impossible to combine both matters in one bill, because a bill to set aside a decree for fraud is, as we have shown, an independent, original suit, and may be brought in some other court than that in which the decree was entered, while a bill of review for errors in law can lie only in the same court. Moreover, inasmuch as the bill now before us does not show that the complainant made any movement towards rectifying the decree for more than nine years, and sets up no excuse for the delay, it is plain that, independently of the rule that a bill of review for errors of law on the face of the record must be brought within the time within which an appeal will lie, the general doctrine of laches offers a perfect defense. It is plain, moreover, that, notwithstanding there were some allegations which might, under other circumstances, be appropriate for a bill of review for errors of law, they are here only incidental to the gravamen of the bill, which, we have already shown, is limited to alleged fraud. It is not necessary for us to advert in detail to the well-settled rule that allegations of fraud in a bill in equity, positively denied in the answer, as is the record here, cannot be sustained on the uncorroborated testimony of a single witness, — which, at the most, is all we have here, — nor to bear on the fact that here that single witness is the complainant, and that his testimony lacks the details essential in proofs of that class. Moreover, we find, under date of June 23, 1885, the following: “Ordered that the defendants bring their account down to May 22, 1885, the date of the filing of additional interrogatories, the additional account to be filed on or before Monday, the 29th instant.” This clearly related to the bill in its aspect as a bill of discovery, although the same day the “supplemental” or amended bill was filed. As already said, the docket entries show that on July 21st, the respondents filed an answer to the amended bill. The answer which the complainant claims was fraudulently withdrawn he alleges was filed on June 29th. There is enough in the docket entries to make it plain that that answer, if it was ever filed, had no relation to the amended bill. It appears that while the original bill remained simply a bill of discovery, on May 11, 1885, the respondents •filed an answer thereto. Afterwards, on June 3d, the complainant moved for attachment for contempt against some of the respondents for not answering fully. Then, on June 23d, we find the order already cited. This merely directed an additional account to be filed on or — 811 — before the 29th. At that time no answer was due to the bill amended to become a bill of relief, and the presumption is inevitable that whatever was filed on the 29th, if anything, was simply the account ordered by the court to be filed on or before that date. On March 24, 1887, the respondents in the original cause produced therein a copy of the paper of June 29th, and accompanied the same with a motion for leave to file it, and an affidavit of tlieir counsel in reference thereto. On March 31, 1888, the court made an order allowing the motion. The court, in granting leave to file this copy, authenticated it as true; and no action has been taken on the part of the complainant to qualify that authentication. Therefore the first step for the complainant in sustaining his bill of review, in that it alleges that the answer of July 21st was fraudulently interposed for the alleged answer of June 29th, was to have brought before the court the copy of the latter, so that the court could perceive its nature, or else to have challenged its authenticity. As the record stands, we are forced to the conclusion that the alleged answer of June 29th was of the character which we have stated, and that it could not have been of any consequence on the hearing which occurred in the original cause, or with reference to the final decree entered thereon. There was no motive whatever to induce its suppression as alleged in the present bill. While thus the very foundation on which a superstructure of fraud could be erected is taken away, nevertheless, without referring to the record further than we have already done so, we ought to repeat that there is an entire failure to prove by suitable evidence any charge of fraud, connivance, or misconduct of any kind on the part of the appellants, or of any one else, and that no proper basis for any suspicion of that character is left. It is not uncommon for the supreme court, where the record indicates mei'its, but the court below has departed from the pleadings or proofs, to reverse the decree, and remand it, with leave to amend the. pleadings, or supplement the proofs, as the circumstances may be. There is no necessary difficulty, arising from the mere matter of form, to prevent a bill from being regarded as a summary petition, provided the substantial allegations are present. The parties having been fully heard on the merits, we treated a cross bill as an intervening petition in Gregory v. Pike, 15 C. C. A. 33, 67 Ted. 837, 846. But, in any view, whether relating to the bill now before us as framed, or whether to it as made by the circuit court, no case can be found emanating from the federal courts which can overcome the defense of laches. Whatever may have been the condition of the complainant’s knowledge before the copy of the answer of June 29th was ordered to be filed on March 31, 1888, he then knew every detail which he knows at the present time. The bill alleges no excuse whatever for his delay, except the pretense of an attempt to reopen the case by a paper filed on March 25, 1887, to which we will refer further hereafter. Under these circumstances laches is an absolute bar. The principle is so well settled that it seems hardly necessary to refer to authorities, but we will cite Hardt v. Heidweyer, 152 U. S. 547, 14 Sup. Ct. 671, 38 L. Ed. 548, both as to what lapse of time, when not excused, operates in equity absolutely as laches, and what — 812 — allegations the bill or petition must contain to lay the basis of excuse. The decision also shows that the defense of laches is so absolute that it may be taken on demurrer; and, indeed, it is well known that, even without a demurrer, or without any matters appearing in the answer, the court sometimes raises the defense of its own motion. The various expressions found in the decisions of the supreme court with reference to the sound discretion of the court, or special circumstances, refer to the sound discretion of the court in which the case is pending, whether the court of the first instance or the appellate tribunal, and to peculiar circumstances which may either abbreviate or extend the delay in consequence of which the defense of laches becomes operative. A collection of various instances will be found in Galliher v. Cadwell, 145 U. S. 368, 372, 373, 12 Sup. Ct. 873, 36 L. Ed. 738, where, according to the circumstances, delays for so short periods as twenty months, two years, four years, and, the longest there named, five years, operated as a bar. It will be impossible for us to sustain a decree on the bill before us on .any theory whatever without violating the law with reference to laches as laid down by the supreme court on many occasions and as supported by well-established equitable rules. The appellee has called the attention of the court to the fact that on March 25, 1887, — which was the day after the motion for leave to file the copy of the alleged answer of June 29th was made, — he, as complainant in the original cause, filed a petition for leave to file a supplemental bill, which was never considered by the court, and which, as he alleges, was never entered on the docket. He brings to our attention a copy of that petition, which states that its object was to obtain the discovery ordered on June, 22, 1885, and also to obtain the answer which he alleges was filed on June 29th. If this effort had been diligently followed up, and had been brought to a close within a reasonable period before the bill now before us was filed, even though it had resulted adversely to the complainant, it might, in accordance with many precedents, have bridged the long intervening period, and avoided any defense of laches; but now answers are numerous. It does not appear that the petition was ever brought to the attention of the court. The substance of all which could possibly have been obtained by it was obtained by the order allowing the filing of the copy of the answer of June 29th; and, if there had been any loss of any right so far as the petitioner was concerned, or any irregularity through the alleged omission to docket the petition or to act on it, the lapse of time gives to all this the same conclusive answer which it gives to all the other propositions which we have considered. Some other minor matters have been called to our attention, but they are not of sufficient.importance, in any view of them, to weigh against the great preponderance of the case as we have explained it, and any reference to them would merely prolong this discussion without avail. The appellants did not obtain a supersedeas of proceedings in the circuit court subsequent to the decree now appealed from and pursuant thereto. Also it is apparent from what we have already stated — 813 — that neither party can be properly charged with all the conditions which required this appeal. Therefore it is plain that neither party should bear the entire costs, and it seems impracticable to apportion them correctly on any satisfactory theory, or even to determine satisfactorily that they should be apportioned. The decree of the circuit court is reversed, and the case is remanded to that court, with directions to dismiss the bill, with the costs of the circuit court for the respondents therein, and to take such further proceedings as may be necessary to restore the final decree entered in the original cause on the 31st day of March, 1888, without any costs for either party in said original cause except as provided by said decree of said 31st day of March, and neither party will recover any costs of appeal.