102 Wis. 97 | Wis. | 1899
The relief sought on this motion opens an inviting field. It is a singular circumstance that, after nearly a half century of practice under the Code, the question of practice here presented should have been left open and undetermined. True it is that, under some of the earlier decisions of the court, language has been used that would seem to justify the idea that the bill of review of the old practice is still a proper remedy under the Code. But when we come to consider the object and purpose of the new system ; when we keep in view the fact that the new order was intended as a complete substitute-for the old; that the artificial foundation of the old system has been swept away, the incongruity of the idea becomes manifest. A recent discussion of the objects and purposes of the Code by Mr. Justice Marshall, in Kollock v. Scribner, 98 Wis. 104, gives emphasis to the situation. What he there said, and the authorities cited, pay tribute to the wisdom of the framers of the new system, and show most clearly the end sought to be attained.
A review of the cases decided in the early days of the Code makes manifest the fact that the judges and lawyers who practiced under the old system were very reluctant in yielding homage to the new. As justly remarked by Mr. Pome-roy, in his very able work on Code Remedies (§ 31): “ The profession and the courts have been left to work their way in the dark, and the consequence has been an utter confusion and uncertainty, which have gone far to defeat the beneficial purposes of the reform, and to create a conviction in the minds of many very able lawyers and judges that the change was a positive evil.” Their reluctance to conform
There is absolutely no reason for claiming that the old bill of review exists under our present system. In the Kollock Gase Judge Marshall has demonstrated that the ancient cross bill, so potent for good under the equity practice, has no existence under the Code; but the Code permits the answer to be framed to cover all the purposes of the cross bill which it displaces. Reference, we think, to the statutes will show that remedies have been preserved therein, or authorized thereby, fully adequate to meet the needs of all parties litigant. The'policy of the law is to put an end to litigation. The Code, therefore, cut off and wiped out many of the forms of procedure existing under the old practice, that had a tendency to delay or prolong litigation. Eirst, it abolished all distinction between actions at law and suits in equity. Stats. 1898, sec. 2600. It said, further, that the court should, in every stage of an action, disregard any error or defect in the pleadings or proceedings which did not affect the substantial rights of the adverse party, and that no judgment should be reversed or affected by reason of any such error or defect. Id. sec. 2829. The court was further authorized, upon the trial, or at any other stage of the action, before or after judgment, to amend pleadings and processes, etc., to make them conform to the facts. Id. sec. 2830. Within one year after notice, the court might, in discretion, relieve a party from a judgment or other proceeding against him “through his mistake, inadvertence, surprise or excusable neglect,” and might supply omissions when the party had failed to conform to the law, and permit amendments to make the proceedings conformable thereto.
Under the old equity practice, a bill of review, strictly so called, could only be urged after a final decree. Its purpose was to reverse or modify a decree for error of law apparent on the face of such decree, or on account of new facts discovered since publication was passed in the original cause. Since the adoption of the Code, no one has pretended that a judgment could be reviewed by this proceeding for errors on the face thereof. The suitor has always been left to his remedy either by motion, writ of error, or appeal.
The question of whether a bill of review-will lie in this state on the other ground stated has never been definitely determined. In the early case of Parish v. Marvin, 15 Wis. 247, the action was to reverse the judgment of another circuit court, and for a perpetual injunction. The action was considered to be in the nature of a bill of review, and Judge DixoN says: “ If proceedings in the nature of a bill of review may still be taken, they must be had before the court in which the judgment was rendered.” On the point that one circuit court has no jurisdiction to open, review, set aside, or reverse the judgment of another circuit, the decisions are numerous and uniform. Fenske v. Kluender, 61 Wis. 602; Coon v. Seymour, 71 Wis. 340; Cardinal v. Eau Claire L. Co. 75 Wis. 404; Stein v. Benedict, 83 Wis. 603.
Thus, it will be seen that, whenever the question has been presented, it was left without determination. In the cases cited, expressions are used speaking of bills of review and bills in the nature of a bill of review. In the old practice the distinction-consisted in the fact of whether the decree had been enrolled or not. If the decree had been enrolled, the bill of review was proper. If the decree had not been enrolled, then a bill in the nature of a bill of review would lie, and was usually accompanied by a petition to rehear the original case. Story, Eq. Pl. §§ 421, 422. Under the latter head, and under the Code, the relief sought to be secured thereby is usually obtained by motion, as the judgment is within the control of the court and may be reviewed or modified at any time during the term.
It must be borne in mind that, under our system, remedies in a court of justice are divided into actions and special proceedings (Stats. 1898, sec. 2594); that actions are either civil or criminal (Id. sec. 2597); that all the old forms of ac
We have said that the true spirit of the law was to put an end' to litigation. Stats. 1898, see.' 2819, limits the time within which a motion for a new trial may be made, on the ground of newly discovered evidence, to one year from the verdict or finding. But suppose, as in this case, the facts upon -which the fraudulent character of the transactions re-
There can be no question of the jurisdiction óf a court of chancery to relieye against fraud. In Stowell v. Eldred, 26 Wis. 504, we read that “ chancery will relieve against a judgment at law, on the ground of its being contrary to equity, when the defendant in the judgment was ignorant of the facts in question pending the suit, or it could not have been received as a defense, or when he was prevented from availing himself of the defense by fraud or accident, or the acts of the opposite party, unmixed with negligence or fault on his part.” The same proposition is repeated in Barber v. Rukeyser, 39 Wis. 590; and Hiles v. Mosher, 44 Wis. 601. Suits to restrain the execution or enforcement of judgments upon equitable grounds have been entertained by this court. Coon v. Seymour, 71 Wis. 340; Nevil v. Clifford, 55 Wis. 161.
Johnson v. Coleman, 23 Wis. 452, was a case brought to have a judgment of divorce declared to be void and of no effect on the ground of fraud. The court says: “But we can see no substantial objection to the practice of instituting’ a suit in equity for that purpose. It seems quite as suitable a method to review the questions involved, and to adjudicate upon the rights of the parties, as would be afforded by a motion. Mr. Story says that there is no doubt of the jurisdiction of courts of equity to grant relief against a former decree, when the same has been obtained by fraud and imposition, and this must be done by an original bill in the nature of a bill of review. Story, Eq. Pl. § 426.”
We have heretofore- adverted to the rule that one circuit court has no jurisdiction to open, review, set aside, or reverse the judgment of another circuit. Erom this rule another naturally follows, and that is that the action commenced to attack another judgment must be commenced in the court where the judgment attacked was rendered. A very common method of attack is to restrain the execution or enforpement of the alleged vicious judgment. At this point an important consideration is not to be lost sight of. The court, sitting in chancery, does not claim to exercise supervisory power over itself sitting as a court of law; neither will its own judgments be vacated or reversed. It would be an anomaly, indeed, for a court to restrain itself. It is against the offending party that the energies of the court are directed. Its remedial power is executed by putting restraint upon his usual liberty of following up his judgment. It acts upon the person, and not upon the proceeding. Black,
Something has been said in the cases in regard to obtaining leave of court before such an action can be commenced. The petitioner in this case seems to labor under the idea that it must have the consent of this court before it can proceed. We know of no rule of court or statute making any such requirement. Under the old practice, bills brought to impeach decrees for fraud could be filed and prosecuted without leave of court (Story, Eq. Pl. § 426; Kimberly v. Arms, 40 Fed. Rep. 548). But when founded on new facts, discovered after the decree, such leave was necessary (3 Ency. of Pl. & Pr. 587). If, as we have endeavored to show, the old practice does not exist in this state, and the proper remedy, if any exists, is by direct aption, then we are unable to see any reason why the analogies of the old practice should apply. Especially is this so when we keep in mind the fact that, in all such cases, the power of the court is directed against the parties, and not against the proceeding attacked. Courts are jealous of their judgments, but their power will never be extended to protect a party whose transactions are tinctured with fraud.
What we have said in relation to the existence of the practice by bill of review in this state is based upon the fact
We express no opinion upon the merits of the defendant’s showing of facts as a basis of the relief sought. The questions of diligence, and of the persuasive nature of the circumstances alleged as grounds for relief, are for the determination of the trial judge when the matter is properly planted in court.
By the Court. — The motion is denied, with $10 costs.