39 Fla. 243 | Fla. | 1897
Lead Opinion
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
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 sup
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
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
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
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 fur
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.
Dissenting Opinion
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
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 be
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