Chester v. Morgan, 11 App. D.C. 435

Chester v. Morgan

11 App. D.C. 435 | D.C. Cir. | 1897

Mr. Justice Morris

delivered the opinion of the Court:

1. After the filing of the transcript of record in this court, the appellees, appearing specially for the purpose, moved to dismiss the appeal on the ground that the citation had not been issued within the time limited for the purpose by the rules of this court, which require that such citation shall be issued within five days after the taking of the appeal. That motion, however, was continued until the hearing on the merits. It is proper that it should now be noticed.

Citation is intended for the purpose of notice; and parties are not entitled to bring their causes to this court by appeal without due notice to opposing parties, unless there has been a waiver of such notice, or unless the appeal has been taken in open court at the term at which the decree appealed from was rendered. There is controversy in this case whether an appeal was not actually taken in open court; and there is also contention that by the presence of counsel in court when the appeal bond was approved the citation was waived or became unnecessary.

*440But, in view of the conclusion which we have reached on the merits of the case, although with the admonition that we can not entertain appeals until parties have been duly summoned into court in the mode prescribed by the rules, we deem it unnecessary in the present case to determine the question here raised by the motion of the appellees.

2. The appeal of the complainant from the order of May 3,1897, denying his petition for a rehearing and incidentally for leave to amend his bill of complaint, can not, of course, be entertained. The order is not an appealable order. It is well settled law that the matter of rehearing, and of granting or refusing leave to amend, is wholly discretional with the justice who hears the cause, and it is not subject to review in an appellate tribunal. Moreover, the circumstances of the case would seem to indicate that the. refusal was entirely proper. ■ •

3. Upon the merits of the case we likewise concur in the ■conclusion reached by the court below.

While the statements of fact in the bill of complaint must for the present hearing be accepted as true, since the cause was heard on the bill of complaint and the demurrer thereto, yet those statements are strangely insufficient and unsatisfactory, when, if the complainant had a good cause, it was exceedingly easy for him to have stated it. It is not made to appear, except by inference or by conjecture, that there was any contract or memorandum in writing signed by Ebenezer Morgan whereby the latter became bound to convey the property in controversy. It does not appear in the bill of complaint when the alleged declaration was made or the alleged contract was executed by Morgan. It does not appear positively that the professional services alleged by the complainant were those required by Morgan. It does not appear when these services were rendered. It does not appear when Morgan died, nor even that he is dead, except by implication, or whether he died testate or intestate; or how the defendants are his heirs at law; or how any duty *441has been imposed upon the defendants in the premises; or what demand, if any, has been made upon the defendants for the performance of such duty. Nor is there any explanation whatever of any kind for the long and unreasonable delay in the enforcement of the claim, if the claim arose as far back as 1887, as we may possibly infer from certain statements in the transcript before us not properly part of any record which we can consider. The bill is remarkably and most extraordinarily vague and indefinite, where certainty was easy, and entire accuracy of statement was within the control of the complainant.

It is very true that some important statements of fact omitted from the bill of complaint appear in the petition filed for a rehearing or in the exhibits annexed to or incorporated with that petition. And even the letter from Ebenezer Morgan to the complainant,, under date of November 25, 1886, which seems to be the foundation of the suit, only appears from a reference to it in the petition for a rehearing as an exhibit to the previous petition for a rehearing in the former suit. But we can not consider these petitions and exhibits. They are not introduced into the record before us in any such manner as properly to become parts of that record.

It would be manifestly improper, upon any such vague, indefinite and insufficient bill of complaint as that now before us, to divest and transfer vested rights of property. For the divesting of vested rights, the statement of a bill of complaint, as well as the proofs in support of them, must be strong and satisfactory, and leave no reasonable doubt of the right of the complainant. Pope Manufacturing Co. v. Gormully, 144 U. S. 224; Hennessey v. Woolworth, 128 U. S. 438.

We cannot see how the court below could well have done otherwise than dismiss the complainant’s bill. But inasmuch as the complainant’s statement of Iris case, inadequate though it be, manifests some equity, which he may possibly *442be able sufficiently to state and to sustain by adequate proof, we think that the decree of dismissal, notwithstanding that it seems to be the second decree of the same kind, should be without prejudice to him to institute another suit in the premises, if he be so advised. With this modification of the decree of the court below, we are of opinion that the decree should be affirmed, with costs. And it is so ordered.