Lewis v. Holmes

SEAMAN, Circuit Judge (after stating the facts as above). 1 ae appellants’ bill, which was “stricken from the files” and dismissed by the order or decree of the Circuit Court, is unquestionably framed as a bill of review for alleged errors apparent on the face of the record therein set forth. It is deemed sufficient to mention that the voluminous averments purport to state, in substance, the pleadings and proceedings of record, under a bill of complaint theretofore filed in such court by the appellee Holmes against John Alexander Dowie (appellants’ testator) and other parties named, together with another bill in equity filed by their testator against the appellee Voliva; that both causes were (in effect) consolidated for hearing; 'that various proceedings and orders ensued, as set forth; and that the final order or decree therein alleged for review as set forth was made and recorded July 14, 1910. The bill of review was filed January 14, 1911, after the expiration of the term of such decree and within the time allowed by law for appeal from the alleged final order. [ 1 ] The right to file such bill for review of errors apparent on the face of the record is well recognized in equity; as a right of course, for which leave of court is not required. Whiting v. United States Bank, 13 Pet. 6, 11, 10 L. Ed. 33; 3 Notes U. S. Rep. 781; Ricker v. Powell, 100 U. S. 104, 109, 25 L. Ed. 527; Story’s Eq. Pleadings (10th Ed.) § 403, et seq.; 2 Daniel Ch. Pl. & Pr. (6th Am. Ed.) § 5, c. 34; 2 Foster’s Fed. Pr. § 354. Being “in the nature of a writ of error” (Story’s Eq. Pl. supra), this bill involves “a strict legal right,” and does “not in any manner depend on the discretion of the court,” thus distinguishing it from a bill of review for newly discovered matter, resting on favor (Ricker v. Powell, supra), as well defined in Cope [845] land v. Bruning (C. C.) 104 Fed. 169. The question is not presented, whether a bill of review may be summarily dismissed, on motion, without plea or demurrer, where its averments disclose, either premature filing or laches; nor is the order predicated on such ground. Findings are recited in the order, in substance, (a) of the pendency of a prior bill, filed by the appellants in 1909, wherein review is sought of “the same records and proceedings” whereof review is sought by the present bill; (b) that the averments of the present bill are insufficient for the purposes of review; (c) that newly discovered evidence is not alleged; (d) that the bill was filed without leave of court; (e) that there are “no specified assignments of error”; and (f) that it does not appear that rights of the defendants “would be conserved by the further prosecution of this suit,” nor that they would be “injured or prejudiced upon the dismissal.” We believe neither of these propositions lends support to the motion or order thereupon. [2] The bill of review, as filed by the appellants, was entertainable alike with other bills for equitable relief, filed by a complainant, entitled to invoke the federal jurisdiction. Hearing thereupon in conformity with the rules of equity procedure is equally the right of either complainant. Neither bill is subject to summary dismissal upon motion for one or all of the above-mentioned causes. Sufficiency of the averments for the relief sought must be tested under demurrer or other proper pleading; and the pendency of a prior suit, for like cause, constitutes no bar to a new bill — even were it assumed that the prior bill of review described in the order could be commensurate with the present bill for review of the subsequent (alleged) decree — although such suits may be subject to equitable regulation, for hearing or otherwise. The above-mentioned propositions, therefore, of insufficiency of the averments for the purposes of review, are in no sense involved for decision under this appeal, and we have not considered and intimate no opinion upon the sufficiency or insufficiency of the bill for such purposes, as variously discussed in the briefs. Irrespective of any question whether the bill appears to be with or without merit, we are of opinion that the order erroneously denies such hearing thereunder as the rules of equity require. [3] Furthermore, the concluding provision of the order reads for allowance of the appeal therefrom, subject to the condition that an appeal bond he filed, with sufficient sureties “in the sum of one million one hundred thousand dollars.” This requirement is neither reasonable in the amount named for the bond, nor authorized under the statute, as no supersedeas is mentioned or involved therein. Appeal from a final order or decree in equity is matter of right, to be allowed by the trial court when sought, as of course, without other conditions than the filing of the usual bond for costs of the appeal. The order of the Circuit Court is reversed, accordingly, with direction to reinstate the appellants’ bill, and proceed thereupon in conformity with the rules of equity.