93 Ill. App. 357 | Ill. App. Ct. | 1901
delivered the opinion of the court.
A decree having been entered upon the bill of review vacating the decree originally entered and ordering a rehearing, that decree was brought by writ of error to this court, and the judgment of this court dismissing the writ of error was afterward affirmed by the Supreme Court. Adamski v. Wieczorek, 170 Ill. 373. The effect of these decisions is to hold that the decree then appealed from was interlocutory in character, and hence not to be reviewed upon appeal or writ of error.
After that decision the cause proceeded upon bill of review, answers and replications and supplemental bill, to a final hearing, which resulted in the decree now presented for review.
The difficulty with this decree is that it has no support in the record as to facts necessary "to sustain it. Heither by specific finding of facts in the decree itself, nor by certificate of evidence heard, nor by deposition, nor by evidence heard before a master in chancery, is there any evidence preserved which, in the slightest degree, tends to establish the allegations of the bill of review to the effect that the original decree was improperly obtained. The decree does contain a recital that plaintiff in error had not answered the supplemental bill, though ruled so to do. But the allegations of the supplemental bill present as new matter only the conveyance to Lobe and the removal of buildings. The material allegations of the bill of review-as presenting grounds for a setting aside of the original decree and the entering of a decree of different nature, are presented by the bill of review as first filed, and the answer of plaintiff in error stands thereto, denying these allegations. Ho default of plaintiff in error was entered.
The parties went to trial; therefore the cause must be treated as if an issue were joined upon the supplemental bill as well as upon the bill of review. Jackson v. Sackett, 146 Ill. 646.
Because the decree has no support of evidence in the record it can not be permitted to stand. White v. Morrison, 11 Ill. 361; Ward v. Owens, 12 Ill. 283; Baird v. Powers, 131 Ill. 66; Ryan v. Sanford, 133 Ill. 291; Jackson v. Sackett, 146 Ill. 646.
Hor does a mere general finding of the decree that the allegations of the bill of complaint are true suffice in this behalf. Glos v. Beckman, 183 Ill. 158.
It is contended by counsel for plaintiff in error that the order dismissing the suit at defendant in error’s costs upon June 14, 1893, was a final order, and therefore that the court had no power to vacate that order and reinstate the cause at the January, 1894, term, no motion to that end having been made at the June, 1893, term.
The contention is sound and a citation of authority to sustain it seems unnecessary. But it is not decisive of the cause now, for plaintiff in error, by voluntarily submitting to the jurisdiction and going to a hearing upon the merits of the cause, has waived this question as to the court’s jurisdiction of his person. Herrington v. McCollom, 73 Ill. 476.
It is also contended by counsel for plaintiff in error that the facts set up by the bill of review are not sufficient to warrant the relief prayed, i. <?., the vacating of the original decree and a rehearing of the cause.
The facts set up are that evidence upon the original hearing xvas false, and fraudulently procured by appellant. Fraud is a ground for vacating a former decree and granting a rehearing upon bill of review. And the procuring of false evidence might be sufficient as a ground, constituting the fraud, xvhich would entitle to such relief, under some circumstances, as where it related to a matter affecting the court’s jurisdiction. Griggs v. Grear, 8 Ill. 2; Caswell v. Caswell, 120 Ill. 377.
Or where fraud is practiced in keeping a litigant away from the trial. Scanlan v. Scanlan, 41 Ill. App. 449.
Or where a decree is obtained at the trial by fraudulent procurement of the attorneys representing the parties. The Chicago Building Society v. Haas, 111 Ill. 176.
In each of which instances the fraud related to the litigant’s right to be present and participate in a trial conducted in good faith.
But the rule does not apply where the false evidence was merely evidence upon issues tried and disposed of upon the original hearing. To permit a rehearing upon bill of review merely upon the ground that it could be established.that a witness upon the original hearing had testified falsely, and by procurement of the litigant who had prevailed upon the hearing, would be to make judicial proceedings interminablé. The necessity of having judicial proceedings reach some end forbids such a rule of practice. It is well established that new evidence, or a showing that evidence heard is false, will not avail on bill of review where the evidence relied upon simply tends to the establishing of the issues originally presented and disposed of; in other words, where it is merely a matter of reducing, or increasing by cumulation, the evidence heard upon the issues. Griggs v. Gear, 8 Ill. 2; Caswell v. Caswell, 120 Ill. 383; Aholtz v. Durfee, 122 Ill. 286; Willems v. Willems, 72 Ill. App. 200; 2 Beach Mod. Eq. Pr. 860; Society v. Watson, 77 Fed. Rep. 512; Southard v. Russell, 16 How. 547; U. S. v. Throckmorton, 98 U. S. 61; Green v. Green, 2 Gray, 361; Pico v. Cohn, 25 Pac. Rep. 970; Traphagen v. Vorhees, 45 N. J. Eq. 41; Livingston v. Hubbs, 3 Johns. Ch. 124.
In U. S. v. Throckmorton, supra, the Supreme Court of the United States, after a careful review of the authorities, say:
“ We think these decisions establish the doctrine on which we decide the present case; namely, that the acts for which a court of equity, will, on account of fraud, set aside or annul a judgment or decree between the same parties, rendered by a court of competent jurisdiction, have relation to frauds extrinsic, or collateral to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered; that the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterward ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.”
The bill here under consideration was filed without leave of court, and whether it be called a bill of review or a bill in the nature of a bill of review, it stands upon the same ground as did the libel in Green v. Green, supra, and the bill in United States v. Throckmorton, supra.
The authorities cited also establish that the mere ability of the defeated litigant to show matters impairing the credibility of a witness upon the original hearing will not suffice for a rehearing upon bill of review.
The well established rule seems to be that the fraud in procuring false testimony must relate to some matter extrinsic of the issues submitted, in order to entitle the defeated party to a new hearing upon such issues upon bill of review. Thus, when it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party by some extrinsic fraud has prevented the other litigant from having the issues submitted, or when collusion of the attorneys for the respective litigants appears, it may constitute such fraud as will entitle to a rehearing upon bill of review. When the defeated party has thus been prevented by fraud from having a trial of the issues, the ground may be regarded as sufficient; but if he has a trial of the issues, he must then be prepared to establish the truth and expose falsehood in relation to such issues. If he is unable thus to do, his relief is by way of a new trial granted by the trial court or on review by an appellate tribunal. Failing in all these, he is without further remedy upon such ground; for while injustice may result in instances under this rule of practice, yet the courts have regarded such occasional injustice as an evil lesser than endless litigation upon the issue.
It is strenuously urged by counsel for defendant in error that our Supreme Court have announced a contrary doctrine in Adamski v. Wieczorek, 170 Ill. 373. If this were só, we would surely be guided and controlled by such announcement. But we do not so understand the decision cited. In that decision but one question was presented and determined, viz.: was the order there presented for review an interlocutory or a final order. And the court determined only that it was interlocutory. It is true that the court did state in the opinion rendered that “ the evidence taken on the hearing of this bill, showing the false and perjured character of the testimony in the original case, would be competent and material on the final hearing on the merits,” but it did not define or undertake to define what the fraud in procuring perjured testimony "must relate to in order to constitute valid ground for a rehearing upon bill of review. The decision is entirely consistent with the earlier decisions of the same court upon the grounds essential to the sustaining of a bill of review.
Because the decree is not sustained by evidence or finding of facts which would warrant the relief, it is reversed and the cause is remanded.
