Bloxham v. Florida Central & Peninsular Railroad

39 Fla. 243 | Fla. | 1897

Lead Opinion

Mabry, J.:

After the decision of this court in this case on the former appeal (Bloxham, Comptroller, et al. vs. F. C. & P. R. R. Co., 35 Fla. 625, 17 South. Rep. 902), no •decree was entered by the Circuit Court under the ■mandate sent down, but leave was granted by that -court and a supplemental bill in the nature of a bill of review was filed by appellee, the complainant in the ■original proceedings. It becomes necessary that we now determine whether such a bill was permissible, in the then status of the case, under the rules of practice in courts of chancery.

A supplemental bill, says Story (Eq. Pl. sec. 332), is '‘merely an addition to the original bill, in order to supply some defect in its original frame or structure. In many cases, an imperfection in the frame of the ■original bill, may be remedied by an amendment. ■Generally, a mistake in the bill in the statement of a fact should be corrected by an amendment, and not by •a right statement of the fact in a supplemental bill. But the imperfection of a bill may remain undiscovered, while the proceedings are in such a state, that .an amendment can be permitted according to the practice of the court; or it may be of such a nature, having occurred after the suit is brought, as may not properly be the subject of an amendment. By the practice of the court, no amendment is generally allowable, after the parties are at issue upon the points of the original bill, and witnesses have been examined. Nor is it generally allowable to introduce into the bill, by amendment, any matter which has happened since the filing of the bill. In such cases, a supplemental bill is the appropriate remedy. And such a supplemental bill may not only be for the purpose of putting-in issue nevr matter, which may vary the relief prayed in the original bill; but also for the purpose of putting in issue matter which may prove the plaintiff’s Tight to the relief originally prayed. Whenever a supplemental bill is not a supplemental suit, but only introduces supplementary matter, tile whole record constitutes but one cause; and one replication and one cause are to be set down for the hearing.” Stafford vs. Howlett, 1 Paige 200; Straughan vs. Hallwood, 30 West Va. 274, 4 S. E. Rep. 394; Ledwith vs. City of Jacksonville, 32 Fla. 1, 13 South. Rep. 454. As to bills of review this court has approvingly quoted the statement of the rule in 2 Daniell’s Cir. Pl. & Pr., 1575, as follows: “The object of a bill of review, and of a bill in the nature of a bill of review, is to procure the reversal, alteration or explanation of a decree made in a former suit. If the decree has been signed and enrolled a bill of review must be hied; if not, a bill in the nature of a bill of review.” “A bill of this character can only be brought upon error in law appearing on the face of the decree without further examination of matters of fact, or upon some new matter which has-been discovered after the decree, and which could not pos'sibly have been used when the decree was made. If the bill is filed on the ground of error the decree complained of must be contrary to some statutory enactment, or some principle or rule of law or equity, recognized and acknowledged, or settled by decision, or be at variance with the forms and practice of the court, but the bill can not be maintained where the-error is in mere matter of form, or the propriety of the decree is questioned.” Mattair vs. Card, 19 Fla. 455. The note to the case of Brewer vs. Bowman, 20 Am. Dec. 158 (3 J. J. Marsh. 492), contains a discussion and review of authorities as to bills of review, their nature and scope. In the case of Putnam vs. Lewis and wife, 1 Fla. 455, an application was made to file a bill to review a decree in a partition suit ascertaining the interests of the respective parties, and' appointing commissioners to make the partition, and' alleged to have been dnly signed and recorded. A ground of the application was newly discovered evidence since the rendition of the decree. It was conceded that a bill of review lies only after a final decree, and it was held that the decree sought to be reviewed in the case was interlocutory and not final. The court said that the decree in this case, being interlocutory, a supplemental bill in the nature of a bill of review would seem to be the appropriate remedy.” Citing 2 Johns. Ch. 490; 2 Atk. 40, 534; 2 Vesey Sr. 598; Mit. Pl. 71; 17 Vesey, 177.

The decision in Owens vs. Love and Bruce, Admrs., 9 Fla. 325, announces the rule that a bill of review lies-only after final decree, and not upon an interlocutory decree. It was there held that after an interlocutory decree has been enrolled the court will grant leave to file a supplemental bill, to bring forward newly discovered evidence, and grant a rehearing, upon the same-if the evidence is of such a nature, as were it a bill of review, would entitle the party to relief. The court said, “Had the application in this petition been but-for a review reversal, and setting aside said decree-(being interlocutory), then the case of Pitman vs. Lewis and wife would be applicable, which decided, that a supplemental bill in the nature of a bill of review would seem to be the approjjriate remedy.” The-view taken in the opinion that a bill in the nature of a bill of review is not of use in this State has been disapproved. Finlayson vs. Lipscomb, 15 Fla. 558.. Supplemental bills and bills of review, the nature and scope of which are discussed by the authorities cited,, have an admitted application, under a proper state of facts, to cases in the lower court, and where a case is pending or disposed of by a chancellor there is no obstacle in the way of his permitting the nse of such bills, in proper cases, to affect his own decrees. But •other considerations are involved where such bills are resorted to after the decree of the chancellor has been passed upon by the appellate court. We do not find any direct adjudication on this point in this State. In the cases of Putnam vs. Lewis and wife and Owens vs. Love and Bruce, Admrs., the decrees sought to be modified had not been before the ■appellate court. Finlayson vs. Lipscomb, 16 Fla. 751, presents a case where a supplemental bill in the nature •of a bill of review was permitted to be filed by the chancellor after the reversal by this court of an order granting a rehearing upon the rendition of the decree, and before enrollment, but we find in the opinion upon the reversal that it was pointed out that the proper remedy, if any existed, was by supplemental bill in the nature of a bill of review, and the reversal was without prejudice to an application for other appropriate proceedings. Finlayson vs. Lipscomb, 15 Fla. 558. There is no difficulty where the appellate court expressly authorizes such proceedings.

When the bill was filed in the case of Mattair vs. Card, 19 Fla. 455, a former decree between the same parties relating to the same subject-matter had been affirmed-on appeal — 18 Fla. 761 — and while the professed object of the second bill was to annul and set -aside the former decree, it proceeded, in total disregard of the rules applicable to bills of review to re-lit - igate matters supposed not to have been involved in the first suit. The court decided that a bill to procure the reversal, alteration or explanation of a decree made in a former suit, except for fraud in obtaining it, was by bill of review, and no such fraud being shown, it was determined that all the grounds of relief set up in the second bill were involved, and necessarily submitted for consideration, in the first suit. In speaking of one ground of the defense the court say “the question whether the mortgage was valid to create a lien upon the property because of the omission of words of grant or conveyance by S. R. Mattair in the body of the instrument was necessarily submitted to the court at the hearing before the chancellor, and determined, whether it was made a ground of objection at the time or not. The decree necessarily determined that the paper was a valid mortgage, and directed its enforcement as such. The decree was affirmed on appeal, and though the question of its, sufficiency was not raised upon the appeal, the affirming of the decree places the question beyond the reach of review here.” The opinion does point out defects in the bill viewed as one of review; but the question as to whether the lower court can permit, under any circumstances, a bill of review, or bill in the nature of a bill of review, to be filed to modify a decree affirmed or directed to be entered by the appellate court, either on questions of law or facts, was not considered by the court, and evidently not designed to be decided. We are of the opinion that when the Supreme Court on appeal affirms the decree of the Circuit Court, or when such a decree is modified on appeal either as to questions of law or fact necessarily involved, with directions for further proceedings consistent with the opinion, the Circuit Court has no authority to open the case for a new trial, or to enter any other judgment than that directed to be entered, unless authority to •do so is expressly given by the appellate court. Any •other rule than this seems to us to be entirely inadmissible. Sections 1277 and 1278 Rev. Stat. provide •as follows, viz: “It shall be the duty of the court on an appeal or writ of error to examine the record, to reverse or affirm the judgment, sentence or decree of the •court below, or to give such judgment, sentence or decree as the court below ought to have given, or as to it may appear according to law.” “The appellate ■court may order the record of the judgment appealed from, with its decisión and determination thereon in writing duly certified, to be remitted to the court from which the writ of error ¡shall have been taken, and the said decision and determination shall be carried into execution by the officers of said court, a (quo, or the appellate court ■may award executions to carry into effect its decision and determination.” Under this authority, and as to chancery causes it may be independent of such legislation, when the appellate court has examined the record of a cause and affirmed the decree appealed from, or has modified or reversed such decree with directions as to the decree to be entered, whether the decision was on questions of law or fact it is not the province of the court, a quo, to allow further proceedings, but the judgment and mandate of the Superior -Court must be obeyed. We confine ourselves at present to the case of an affirmance, or reversal or modification of the decree with directions for further proceedings consistent with the opinion, as it is not nec•essary to say what would be the effect of a mere reversal without further directions. This conclusion is ¡sustained by the views of Chancellor Walworth in the case of Stafford vs. Bryan, 2 Paige. 45, in which he took the view that a court of chancery can not entertain a bill in the nature of a bill of review upon the ground of newly discovered facts, to review a decree which had been affirmed in the court for correction of errors, unless such right has been expressly reserved. Vide also Lyon vs. Herritt, 6 Paige, 473. 'The same view was entertained by Wright, J., in Kinsell vs. Fieldman, 28 Iowa, 497. The doctrine of the Supreme Court of the United States is in favor of the same view. The point was directly decided in the ■case of Southard vs. Russell, 16 How. 547. The court said "as already stated,' the decree sought to be set aside by this bill of review in the court below was entered in pursuance of the mandate of this court on appeal in the original suit. It is therefore the decree of this court, and not that primarily entered by the court below, that is sought to be interfered with. The better opinion is, that a bill of review will not lie at all for errors of law alleged on the face of the decree after the judgment of the appellate court. These may be corrected by a direct application to that court, which would amend, as matter of course, any error of the kind that might have occurred in entering the decree. Nor will a bill of review lie in the case’of newly discovered evidence after the publication of decree belowg where a decision has taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly.for the purpose. This appears to be the practice of the Court of Chancery and House ■of Lords, in England, and we think it founded in principles essential to the proper administration of the law, and to a reasonable termination of litigation between parties in chancery suits.” That court has acted on the same rule in other cases. Tyler vs. Magwire, 17 Wall. 253; Mackall vs. Richards, 116 U. S. 45, 6 Sup. Ct. Rep. 234; Skillern’s Executors vs. May’s Executors, 6 Cranch, 267. Some text writers state that it would seem from the decision in Barbon vs. Searle, 1 Vernon, 416, that for matter newly discovered after decree affirmed in the House of Lords, a bill of review might be allowed. We have examined the case and do not see that it sustains the inference drawn. After a decree dismissing a bill had been affirmed in the House of Lords, a bill was filed for discovery, and after the discovery that plaintiff might apply -to the House for leave to proceed. An answer -was required, but it was distinctly recognized that the decree of the-Lords could not be interfered with unless they permitted the suit for that purpose, and any further proceedings than the discovery were suspended until leave was obtained. Decisions in the States of South and North Carolina and Missouri, also fully sustain our conclusion. Ex parte Knox, In re Cothran vs. Knox, 17 S. C. 207; Ibid 13 S. C. 496; N. C. R. R. Co. vs. Swepson, 73 N. C. 316; Hurck vs. Erskine, 50 Mo. 116; Chouteau vs. Allen, 74 Mo. 56. It is said in Greer vs. Turner, 36 Ark. 17, that “the usual directions on remanding a cause, when this court deems it advisable to remand at all, are for further proceedings consistent with the law declared, and facts found, by the written opinion. This becomes the law of the case, and as to facts found, res judicata. • Consistently with these it is not generally intended to trammel the proper courts of original jurisdiction, by precluding them from any steps which may be within the proper scope of the suit, and necessary to complete justice between the parties in reference to its subject-matter.” Outside of the matters directly adjudicated, it seems in that State, a plaintiff' may by supplemental bill, after the return of the, cause to the lower court, bring forward new matter occurring since the final submission, of the cause in the Circuit Court. It should be conceded, we think, that decisions in Virginia, Kentucky,. New Jersey and Georgia go to the extent of sustaining the authority of the lower court to permit a bill! of review on the ground of newly discovered facts-without leave from the appellate court, after the case-has been decided in the latter court, but the preponderance of authority is, we think, clearly the other-way. In our opinion the Circuit Judge should have-entered a decree under the mandate sent down and n ot permitted the case to be opened by the supplemental, bill allowed to be filed. A mandate of this court should be construed with reference to the opinion delivered in the case, and from the opinion filed it will be seen that the decree was affirmed in part with modifications, reversed in part with directions in the mandate for further proceedings according to right, justice, the judgment of this court, and the laws of the State of Florida. This mandate stated the particulars-in which the former decree was changed, and clearly contemplated that a new and different decree should be entered than that rendered by the Circuit Court. We quote from the opinion in Ex parte Knox, in Cothran vs. Knox, stopra, as follows on this point: “When the judgment of the Circuit Court is simply affirmed, it may seem that the judgment in the cause in which it is rendered is only a judgment of the Circuit Court unrevoked; to reverse a judgment of the Circuit Court may perhaps mean something more than. • ¡merely to annul or set it aside; but when a judgment ■ of the Circuit Court is modified by the Supreme Court vit is certainly a new judgment with ^different provisions from the Circuit Court judgment. While such a judgment is the final judgment in the case, it is difficult to see how it is merely the judgment of the Cir■•cuit Court. It is made, as in the case now under •consideration, in the Supreme Court, and is made by ran authority paramount to and which overrides the 'Circuit Court. This judgment of the Supreme 'Courtis remitted, not to be reheard in, but to be enforced by the’Circuit Court according to law.”

An appeal might have been taken from the order of •the court granting leave to file the supplemental bill in the nature of a bill of review, instead of entering ■judgment under the mandate as should have been ■done, but as the supplemental bill alleges the proceedings in the former suit, including the appeal to this court, the decision and mandate issued, it may be disposed of on demurrer, and the court should not have • overruled it. W e can not sanction spell a departure from precedent as was allowed by the Circuit Judge. ■This conclusion removes from consideration the merits •of the bill, if it had been properly filed, and other ■matters discussed in the brief's.

The petition for leave to file a supplemental bill in ■the nature of a bill of review, considered in connection -with the bill permitted to be filed in the lower court, • can not be regarded as affording any sufficient ground for reviewing the judgment directed to be entered by ■ this court under its mandate, if it had been entered, ■beyond the exemption of taxation in question of the dine of railroad from Jacksonville to Chattahoochee. ' The view announced in the former opinion in this case was that when the time tor the assessment and collection of taxes has passed, and the taxing statute affixes no lien on the proxierty, and the State has made no assessment, or taken any other steps to collect the same, real estate can not be pursued for back taxes when it has gone into the hands of an innocent x>tir- • chaser for value. If, as a matter of fact, as claimed in the petition filed in the lower court for leave to file the snpxilemental bill in the nature of a bill of review, and in the bill filed, the line of road from Jacksonville to Chattahoochee went into the hands of an innocent bona fide purchaser before the State proceeded to collect taxes for years ynior to such purchase, it would be inequitable and unjust to demand them. Whether' appellee. or its predecessor, was such purchaser, or, if so, whether it can now avail itself of such defense, we do not now decide, as the Circuit Court had no authority to x>ermit to be filed or to consider any supx>lemental bill in the nature of a bill of review. This court has the ymwer in awarding a judgment on ax> peal, whether of affirmance or reversal, to authorize a bill of review to be filed in the lower court, and this was done in the case of Finlayson vs. Lipscomb, 15 Fla. 558, without any direct apx>lication for that purpose. Prom the consideration of that case, then on .ax^peal, it appeared to the court that appellant had mistaken his remedy, if he had any, and the court reversed the decree without prejudice to resort to another course, which was x>ointed out to be a supplemental bill in the nature of a bill of review. In our opinion this court also has the power on an independent petition tiled for that purpose, after a mandate on a former ax^peal has been issued, and lodged in the lower court and a judgment entered to grant leave to file a bill of review of the judgment entered. In re Gamewell Fire Alarm Tel. Co. et al., 73 Fed. Rep. 908, 20 C. C. A. 111. In neither case should leave be-granted to file a bill of review as a matter of course, but the power of this court should be exerted in this-direction only when, in the exercise of a sound legal discretion, it appears that good and sufficient grounds-exist for filing such a bill. Where the application is-made on the ground of newly discovered matter the-questions of the materiality of the alleged new matter and laches both will arise, and this court must be satisfied that a sufficient ground exists before leave will be granted to file a bill of review of a judgment directed by it to be entered. In the present case no judgment has yet been entered under the mandate sent down in the former appeal, and the case is now befoi-e us for further directions. It is clear from the record that appellee is seeking to l’eview the former decision made in this case on the ground of newly discovered matter since the decision, and it is also evident from what has been said that a mistake has been made as to the proper course in accomplishing this object.

We are satisfied from the entire record before us that there is sufficient shown to authorize this court to grant leave to appellee to be heard on an application in the Circuit Court to file a bill of review of the judgment when entered, to the extent of the line of railroad and branches from Jacksonville to Chattahoochee, formerly known as the Florida, Central and Western Railroad Company, and, after a careful examination of all that has been disclosed, we are of opinion that justice, requires that an order be made in this court granting permission to appellee to be further heard in the Circuit Court to the extent mentioned on account of the alleged newly discovered matter.

The decree overruling the demurrer will be reversed and the cause remanded with further directions that the Circuit Court dismiss the supplental bill in the nature of a bill of review and enter a final decree in accordance with the former judgment of this court upon which a mandate will again issue, and an order will be entered here permitting appellee, within ninety days after the decree is entered, to apply to the Circuit Court for leave to file a bill of review to the extent of the line of railroad mentioned in the decree from Jacksonville to Chattahoochee and branches.

Ordered accordingly.

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Dissenting Opinion

Carter, J.,

dissenting:

I regret that I find myself unable to agree with the majority of the court in that portion of the opinion which directs the entry of an order here permitting appellee to apply to the court below for leave to file a bill of review as to certain lines of railroad in the opinion mentioned. I concur fully with the views an nounced in the opinion, that no bill of review or bill in the nature of such can be filed in the lower court, to charge or modify a final decree which has been .affirmed, or directed to be entered by this court, without leave of this court first obtained. And it follows that if a bill of this character can not be filed without such leave, that the leave should not be granted as a matter of course. The rule requiring leave is not founded upon an imperative statute or rule of court, but it springs from the inherent authority and dignity attaching to judgments of an appellate court, to prevent conflicts in jurisdiction between appellate and inferior courts and from that principle of jurisprudence which-requires that somewhere, within reasonable limits, litigation shall end. Southard vs. Russell, 16 How. 547. The decision of the highest appellate court, affirming a judgment, or directing the entry of a certain judgment, is presumptively the end of litigation in that particular case; and before granting leave to continue-the litigation in the court below by a bill of review, this court should require the party applying for leave to- show, prima facie, at least, a right to have the decree reviewed. I do not regard the case of Finlayson vs. Lipscomb, 15 Fla. 558, as authority for the position that this court should give jDermission to lile a bill of review, in awarding judgment on appeal, without a direct application for such leave, or as holding that it has the power to do so. In that case, which was an appeal from an order granting a rehearing only, the-court reversed the decree “without prejudice to an application, if deemed advisable by the parties, for other-appropriate proceedings.” This expression, “without prejudice,” simply had the effect of divesting the judgment of the quality of res judicata. 2 Daniell’s Chy. Pl. & Pr. 994. It meant that the position of the losing party was not to be unfavorably affected by the judgment, but that his rights were to remain as they then stood. Creighton vs. Kerr, 20 Wall. 8. It simply left the parties in the same situation as if the petition for rehearing had not been filed. Epstein & Bro. vs. Ferst & Co., 35 Fla. 498, 17 South. Rep. 414. It did not undertake to grant the parties leave to file-a bill to review any judgment that had been affirmed or modified by this court, for the case had never been to this court before. It is useless to discuss this question, however, for the majority of the court do not, grant the leave simply because they have the power:.* they expressly state that it should Dot be granted as a matter of course, but in this case because “in the exercise of a sound legal discretion, it appears that good and sufficient grounds exist for filing such bill.” It is ¡ further held that where the application is made on the ■ ground of newly discovered matter, the questions of' the materiality of the alleged new matter and laches both will arise, and this court must be satisfied that a, sufficient ground exists before leave will be granted,. and that there is sufficient in the entire record in this, case to so satisfy the court. In discussing this question I shall confine myself entirely to cases of review for newly discovered evidence, or matter, as that is the only question involved. This court has held that “to entitle a party to relief in such cases the newly discovered! evidence must be relevant and material, and such as-might probably have produced a different determinat-ion. The new matter must have first come to the-knowledge of the party after the decree. The matter ■ must not only be new, but it must be such-, as the-party, by the use of reasonable diligence, could not have known. It must not be merely cumulative,, nor-merely corroborative or auxiliary to what is already in the case; but must establish a new fact of itself decisive of the merits of the cause.” Owens vs. Forbes, 9 Fla. 326; Finlayson vs. Lipscomb, 16 Fla. 751. In the latter case a doubt is expressed whether mere verbal testimony is new matter within the meaning, of the-authorities; and as to that point I now express no. opinion, but will consider the case upon the theory that" such testimony may constitute new matter. And the-rule is universal that upon application to file a bill of.' review of this nature the application must show thafc the new matter has come to the knowledge of the applicant and his agents for the first time since the period ;at which he could have made use of it in the suit, and that it could not with reasonable diligence, have been ■discovered sooner, and that it is of such a character 'that- if it had been brought forward in the suit, it probably would have altered the judgment; 2 Daniell’s Chy. Pl. & Pr. page 1578; 2 Beach Modern Equity Practice, secs 860, 862 and 868; 3 Ency. Pl. & Pr., 587; Story’s Eq. Pl. sec. 412 et seq.; and the same authorities are equally unanimous in requiring an affi•davit to these matters, upon the application for such leave. This being true, I do not think this court can •consider the matters alleged in the supplemental bill found in the record; becauseitis not sworn to; neither 'does the petition to the court below for leave to file the bill contain any statement that the matters alleged in the supplemental bill are. true. I state this, be«cause there are many important allegations in the supplemental bill, which do not appear in the petition ■and such matters are improper to be considered. Buckingham vs. Corning, 29 N. J. Eq. 238.

In order to a full understanding of the case before this court, it will be necessary to refer briefly to the •original bill and proceedings thereon. The original 'bill filed November 2, 1892, was sworn to by Col. John A. Henderson, Vice-President of, and attorney for, ■the complainant corporation, the affidavit stating that “he has read the foregoing bill of complaint and .-knows the contents thereof; that the same is true as to all matters stated therein upon knowledge, and that •as to all statements on information and belief therein made, he believes them to be true.” No allegations in •the bill puiport to be made upon information and belief, except that the sheriff will sell the property of complainant levied upon by him unless enjoined by the court. According to the sworn allegations of the bill, as found by this court on the former appeal, the line of railroad from Jacksonville to Chattahoochee, with branches, was acquired by Edward J. Reed and associates in September, 1879, at a foreclosure sale in behalf of the State against the Jacksonville, Pensacola and Mobile Railroad Co., and Reed and associates owned and operated the property until February 8, 1882, when they organized a corporation under the name of Florida, Central and Western Railroad Co., and conveyed the property to that corporation on February 28, 1882 (85 Fla., text page 722). In the original bill of complaint the distinct claim was made that the complainant was an innocent purchaser of this particular property for value; and also that it succeeded to the rights of exemption from taxation, supposed to have been granted to the original owners of the railroad then owned by complainant, and in order to sustain these claims, the bill undertook to trace the titles direct from the original owners, through successive ones, to the complainant. The original answer of the defendants was excepted to by complainant in February, 1898, becaus# the defendants had not answered to the best of their knowledge, among other things, whether the several conveyances and transfers of this particular branch of complainant’s road were not as alleged in the bill; and such exceptions being-sustained the defendants on information and belief admitted the allegations of the bill to be correct. An agreement was made November 18, 1898, between the counsel for the respective parties, that if the court below should refuse the application of complainant for an in junction that day made against a sale for the taxes of 1879, 1880 and 1881, that thereupon a decree should be rendered dismissing the bill, “this without prejudice-as to the exercise of the full discretion of the court; and a final decree upon the merits may also be entered herein in accordance with its findings.” The effect of this agreement was to submit the case upon bill and answer. On November 25, 1893, the decree was entered in the court below, and the decree was in favor of complainant as to the taxes of 1879, 1880 and 1881. On March 19, 1895, this court filed an opinion reversing the decree as this particular matter, which is reported in 35 Fla. 625, 17 South. Rep. 902. In May, 1895, a petition for rehearing was filed, signed by the same solicitor for complainant, in which it is said that the court erred in its conclusion as to the facts of the-history of the railroads and their changes of ownership; that while it is true as alleged in the bill that the sale of the roads from Jacksonville to Chattahoochee was made in 1879, and the property deeded to the Florida Central and Western Railroad Company, in 1882, '■Hf it had been anticipated that the articles of association of the Florida Central and Western Railroad Co., (not in the record) would have been considered in either court for the .Ipurpose of showing the connection of the purchasers with the taxed property for the years 1879 to 1881, the facts would hare been made to appear that the sale of 1879 was not confirmed until 18c82, and that the purchasers at such sale were not let into the possession of the property before confirmation.” It is difficult for me to see how these matters could have been made to appear in the Circuit Court, if they have only been discovered since the decree was rendered. By reference to the articles of incorporation of the Florida Central and Peninsular-Railroad Co. it will be seen that Col. Henderson was--, one of the incorporators of, and a director in, the company; and he is now vice-president of, and attorney for, the company in this case, and it needs no citation-of authority to show that if he knew, or could by reasonable diligence have known, of these facts before-the decree was pronounced, the company would nof be allowed to file a bill of review. Furthermore, in. his brief filed in this court July 17, 1894, Col. Henderson shows a thorough knowledge, not only of every act of the Legislature touching the ownership, or taxation of the railroads now owned by his company, but of every decision of this court and of the United States-Courts, affecting the title to, or right of exemption from taxation of such railroads, therein referring to-the case of Schutte et al. vs. The Florida Central, and Jacksonville, Pensacola and Mobile Railroads as being pending continuously from a certain period to May 31, 1879, when it is stated by him that a decree was-entered, which passed to a judicial sale January JO,. 1880, and the property purchased by Sir Edward J. Reed for associates who organized the Florida Central and Western Railroad. The case referred to by him was appealed to the Supreme Court of the United-States and the decrees affirmed. 103 U. S. 118. Again on page 14 of his brief he says “and the lines of railroad from Jacksonville to River Junction, with-branches from Drifton to Monticello, and from Tallahassee to St. Marks, upon which the taxes, as a part of the assessments were made in 1885 for the years 1879,.. 1880 and 1881, were for those years and until January 10, 1881, the property of a railroad company known as-the J. P. & M. R. R. Co., on which last named day the* said lines of railroad were sold at judicial sale, under foreclosure proceedings and were bought by Sir Edward J. Reed, who organized a corporation * * which afterwards and until the consolidation of 1884, continued to own and hold such lines of railroad.” There is nowhere in this record any affidavit from Col. Henderson that he did not know of the matters set forth in the petition found in the record prior to the rendition of the decree in the lower ■court. This petition, it will be observed, is sworn to by Mr. H. R. Duval, the company’s president from the time of its organization. In this petition it is ■stated that the Supreme Court “reached its conclusion that any portion of this property was in 1885 in the same possession as in 1879,1880 and 1881, or in that of their privies, by a wholly mistaken view of facts not in issue in the case as submitted, and upon an interpretation of the statements of the bill that is entirely ••at variance with the facts as they existed and the understanding and purport of such statements at the hearing below, by which the court above found that a ■portion of said property, to-wit: the railroad from -Jacksonville to the Chattahoochee river, with branches, was owned and operated by Edward J. Reed and associates from September, 1879, to February 8, 1882, when they organized a company known as the Florida Central and Western Railroad Company; whereas, the truth and facts are “in substance that from September, 1879, to January 6, 1882, all that portion of complainant’s railroad between Lake City and Chattahoochee was owned by the J. P. & M. R. R. Co., and was cperated by Sherman Conant and A. B. Hawkins, receivers of the United States Court, who retained possession and received the profits until January, 1882, when H. R. Jackson, Charles H. Simonton and Adolph Engler, as purchasers at the sale of 1879, were admitted to the ownership of the road; and that Edward J. Reed and his associates were not owners or possessed of the property or in any manner interested therein until after January, 1882; and also that portion of the-road lying between Lake City and Jacksonville was. owned and possessed by the F. C. R. R. Co. up to-January 6, 18S2, when it was purchased by Edward J. Reed, who, for the first time, became possessed of the line of road after the confirmation of such sale.” And the petition then proceeds: “And in like manner as. to the lines of railroad from Fernandina to Cedar Key, and Waldo to Ocala, for the lack of direct information, and because of petitioner’s being, as aforesaid, an entire stranger to the transactions and changes of title preceding the creation of the Florida Railway and Navigation Company and its investiture of the possession of the railroad property, coupled with the fact-that all records of the judicial proceedings and sale thereunder and herein anywhere referred to had been destroyed by fire.” From these extracts it can be readily seen that the principal complaint of the petitioner was that this court had erred in its decision by taking “a wholly mistaken view” of facts not in issue in the case submitted, and by giving an erroneous interpretation to the statements of the bill that is. entirely at variance with the true facts and entirely at variance with the understanding piorport of such, statements of the bill at the hearing below. It is perfectly clear that a bill of review will not lie to correct errors of this character, because such errors áre only-remediable upon a petition for rehearing in this court. Such a petition has been filed and denied, and it is •now beyond our power to authorize the correction of this error, if it exists, by bill of review. Contee vs. Lyons, 19 D. C. (8 Mackey) 207. I know of no power in an inferior court to correct mere errors of law and fact committed by an appellate court by a bill of review. It is also alleged that this court arrived at its • conclusion of fact by giving an erroneous interpreration to the statements of the bill, wholly at variance with the understanding and purport of such statements at the hearing below. If the petitioner .at the hearing below understood the statements of the bill to mean that the Jacksonville, Pensacola & Mobile Railroad Co. were in possession of the •line of road from Jacksonville to Chattanoochee up to 1882, as is implied in this statement, then it must have known this fact prior to the hearing and at the time of preparing its bill, and the matter is not, therefore, newly discovered, within the meaning of the rule. •Something is also said about a “lack of direct information” and because petitioner was “an entire stranger to the transactions and titles preceding the creation of the F. R. & N. Co.,” and that all records of the judicial proceedings and sale thereunder had been •destroyed by fire; but it is nowhere alleged that these matters existed prior to the hearing below, or that they contributed in the slightest degree to prevent the •appellant from acquiring a knowledge of the facts prior to the hearing. The entire statement is incoherent and incomplete. The petitioner may have been ..an entire stranger to the transactions and the records may all have been destroyed, and yet the petitioner may have had notice of the contents of the records, and ■may have been advised of the transactions and titles ¡preceding .the-creation of the Florida Railway & Navigation Co., before the hearing of the case below; and if so, it could not maintain this bill. It may not have had clisrect information, and yet sufficient indirect information to lead it by the exercise of reasonable diligence to have obtained direct information before the hearing. It was further stated that the allegations of the bill as made originally (November, 1892) were made by petitioner a corporation, who had no existence at the time of the transaction referred to. nor at the time of making the assessments complained of but was formed to own and operate the railroad properties that had been purchased by people at a judicial sale in 1887, who were unfortunate creditors of the previous owner, and who were entire strangers to the property prior to their purchase, so that petitioner was not informed of the real facts as stated in the petition, was not advised of their materiality, nor put upon notice of the importance in value of a statement thereof as a deraignment of title by any issue raised in the pleadings. All these facts may be true, and yet petitioner may have known the true facts before the hearing. The statement that the allegations of the bill as originally made were made by a corporation who had no existence during the transactions referred to; nor when the assessment was made; or that petitioner was formed to operate railroad properties which had been purchased by unfortunate creditors, who were strangers to the property prior to such purchase, are not equivalent to an allegation that petitioner did not know of the matters set up in the petition prior to the hearing; neither would an allegation that such matters were unknown to petitioner when the original bill was fled, if such fact was alleged, be ■■equivalent to an allegation that at the time of the hearing it did not know of such fact. It was further-alleged that petitioner now knows that no party in interest in the Florida Railway and Navigation Co. that, in 1885 at the date and time of the assessment, held and owned the whole of petitioner’s railroad then in existence, had one dollar in value, or any interest of any kind, in the lines of railroad in 1879, 1880 or 1881; but it is nowhere alleged that petitioner did now know the same facts prior to the hearing, or that it has discovered same since the hearing. There is nowhere in this petition an allegation that the new matter has come to the knowledge of the petitioner and its agents for the first time since the period at which it could have made use of it in the suit, nor that the matters could not with reasonable diligence have been discovered sooner. The date of its first knowledge on the subject is not given; nor the date of the fire which destroyed the records referred to. It gives the names of the receivers of the U. S. Court, Sherman Conant and A. B. Hawkins, but no affidavit is offered from them. It gives the names of the purchasers, Henry R. Jackson, Charles H. Simonton and Adolph Engler, but it-presents no affidavits from them. It does not show that any diligence was exercised to procure information from any of these persons, nor show an excuse for failing to do so. Mr. Engler was one of the purchasers at the sale of 1879, must have known that he did not take possession of the road until 1882, and yet he was one of the original charter members of petitioner corporation and a director therein, as shown by the articles of incorporation on file in the office of the Secretary of State. It is nowhere disclosed how the petitioner or its predecessors secured the property from Edward J. Reed and associates, or how he secured ti-tie, notwithstanding the statement; in the original bill that he purchased at the sale of 1879 which is denied by the petition. It is not shown that any inquiries were even made of petitioner’s predecessors, or any effort made to ascertain the facts in any manner. My conclusions herein I think are fully sustained by the authorities. Ryerson vs. Eldred, 23 Mich. 537; Greer vs. Turner, 47 Ark. 17, 14 S. W. Rep. 383; Kern vs. Wyatt, 89 Va. 885, 17 S. E. Rep. 549; Schaefer vs. Wundurle, 154, Ill. 577, 39 N. E. Rep. 623; Bartlett vs. Gregory, 60 Ark. 453, 30 S. W. Rep. 1043; Traphagen vs. Voorhees, 45 N. J. Eq. 41, 16 Atl. Rep. 198; McGuire vs. Gallagher, 95 Tenn. 349, 32 S. W. Rep. 209; Mattair vs. Card, 19 Fla. 455.

As to whether the matters set forth in the petition or supplemental bill are sufficient to constitute the pe ■ titioner an innocent purchaser for value within the meaning of our previous decision, I express no opinion at this time.

I am deeply impressed with the importance to the petitioner of the questions sought to be raised by it in the proposed bill of review; but upon the whole record it seems to me that the real grievance of petitioner is that this court may have committed an error in its former decision on the facts. If the court did commit an error, it is now conclusive upon us, unless relief be sought in some manner recognized by the law as appropriate. We are not justified in correcting one error by committing another, however meritorious the claim may be. If I am correct in my conclusions, that the case presented is insufficient to sustain a bill of review, it follows that leave to file one should not be given, because such course would only entail addi.'tional delay, trouble and expense upon the parties, and prolong the litigation indefinitely, to no useful [purpose.

Case Details

Case Name: Bloxham v. Florida Central & Peninsular Railroad

Court Name: Supreme Court of Florida

Date Published: Jan 15, 1897

Citation: 39 Fla. 243

Court Abbreviation: Fla.