38 F. 459 | U.S. Circuit Court for the Northern District of Illnois | 1889
This is a bill to set aside a decree entered on the 20th of December, 1878, in a cause then pending in this court, wherein the present complainant, Francis Dunlevy, ’was complainant, and the present defendants John C. Dunlevy and William P Kerr were defendants, and in which a cross-bill had been filed by Kerr against the two Dunlevys. It appears that in February, 1869, the complainant, Francis Dunlevy, niade a contract with the defendant William P. Kerr, by which he (Dun-levy) was to acquire an interest in a tract of land then owned by Kerr, lying south of the city of Chicago, and which has since become a part of the park system of the city, and by subsequent dealings between Francis and John C. Dunlevy the control and management of this contract was assigned by Francis to John C.; and some time after this transfer to John C. such differences arose between Francis on the one part and John C. on the other part, in regard to the interest of Francis in this land covered by the contract with Kerr, and the dealings between Francis and John C. Dunlevy subsequent to the making of such contract, that on the 10th day of January, 1874, Francis Dunlevy filed a bill in this court against John C. Dunlevy, charging, in substance, that by reason of certain dealings between himself and John C. he had again become entitled to the entire benefit of the contract with Kerr, and was entitled to a reassignment from John C. to himself of the Kerr contract; that John C. had, on request, refused to make such reassignment, and refused to account for the profits which he had made from the Kerr contract; and prayed for an accounting for the profits alleged to have been made by John C. Dunlevy from his dealings with Kerr in regard to the said lands; and also that John C. Dunlevy be required to reassign said contract to the complainant, Francis Dunlevy. This bill was subsequently amended by making Kerr a party defendant, with averments charging that Kerr and John C. Dunlevy were confederating and combining together to defraud the complainant, Francis, in the premises, and praying a specific performance of the contract b}1; Kerr. Both John C. Dunlevy and Ken-answered the bill, denying all rights and equities claimed therein by
The bill in this cause was filed on the 3d day of January, 1885, and an amended bill was filed on the 4th of March, 1885, and in this last bill, as amended, it is charged, in substance, that the decree in the former case is erroneous, and contrary to the proof as shown by the record; that said decree was obtained and caused to be entered by reason of the fraudulent practices and conduct of the defendant John C. Dunlevy; and prays that the said decree so entered in the former case on the 20th of December, 1878, may be set aside. This bill has been answered, by all the defendants denying all errors in the proceedings in the original case, and denying that the decree complained of was obtained by fraud, and the case brought to hearing upon the pleadings and proofs.
As a bill of review to set aside this decree for error apparent upon the face of the record this bill can have no standing in court, because it was not filed in apt timé, .the authorities all agreeing that such a bill must be filed within the time in which the defeated party could prosecute an appeal or writ of error from the decree complained of, (Thomas v. Brockenbrough, 10 Wheat. 146; Whiting v. Bank, 13 Pet. 6; Kennedy v. Bank, 8 How. 604,) while here over six years had elapsed from the entry of the decree before the filing of the present bill, and no excuse is shown for the delay, even if an excuse could be considered. It is true it appears by the proof that after this decree was entered the complainant brought a suit against'Kerr in a court in Ohio, to enforce the same equities claimed in the original suit, but this is no excuse for the delay Avhich occurred between the time of the final decree in the original cause and the filing of the present bill, so that this cannot be treated in any sense as a bill of review) or the court asked to look into the errors which the court may have committed in the entry of the original decree; it being enough, I think, to say that if the decree complained of was entered without sufficient proof, or in violation of any of the rules of procedure of the court, the remedy for such errors-should have been sought by an appeal, or by a bill of réview filed in apt season, the case being one which the court had an undoubted right to hear and determine. Bull. N. P. 66; Buckmaster v. Carlin, 3 Scam. 106; U. S. v. Arredondo, 6 Pet. 709; Young v. Lorain, 11 Ill. 637; Voorhees v. Bank, 10 Pet. 449: Suitterlin v. Insurance Co., 90 Ill. 483.
This bill, therefore, I think can only be treated as a bill to set aside the décree complained of for fraudulent practices on the part of the defendants in-obtaining the same. The allegations or specifications of fraud, which have been-argued by counsel, and upon which proof has been adduced, may be for convenience arranged under three heads:
(2) That the notice served on Tuley, Stiles & Lewis, as complainant’s solicitors, on the 13th of December, 1878, stating that Kerr’s solicitor would ask for the filing of the master’s report, did not contain the clause stating that complainant in the cross-bill would move the court for a final decree instanter.
(3) That John 0. Dunlevy fraudulently caused the cross-bill to be filed without the direction or knowledge of Kerr, and procured the default of the defendants thereto and the entry of the decree thereon, while he (John C. Dunlevy) was in tact the trustee of the complainant, Francis Dunlevy, and that the said John C. Dunlevy fraudulently imposed upon the court in filing the cross-bill and in obtaining the said decree.
As to the first charge, the proof shows that the original bill was filed by Messrs. Walker, Dexter & Smith, as complainant’s solicitors, and the complainant himself testifies that they were employed with his knowd-edge and paid from his funds by Mr. Howards Priestly, -who, at that time, had some interest in, or lien on, -whatever title the complainant had to the lands in Question. The names of these solicitors appear upon the bill and in the proceedings of the cause up to the 14th day of May, 1878, and the proof shows, without contradiction, that the notice of the entry of the rule to plead, answer, or demur to the Kerr cross-bill was presented personally to Mr. Dexter, the active member of that firm, and service of the notice admitted by Mr. Allen, a clerk of the firm, by the direction of Mr. Dexter; and it may well be asked, I think, what more could the complainant in the cross-bill do for the purpose of serving this notice on complainant’s solicitors? It is true that complainant testifies that Mr. Sibley told him (complainant) that he (Sibley) would not acknowledge service of the cross-bill, and that, if he (complainant) was served, that he (Sibley) would attend to it. Mr. Sibley nowhere appears upon the record as an attorney or solicitor in the case, but the court may say from its own knowledge, as well as from what appears in the testimony, that Mr. Sibley was up to the time of his death, some time in the spring of 1876, a clerk for Walker, Dexter & Smith, and whatever conversation or arrangement complainant had with Sibley must be presumed to have been with him as the representative of the solicitors whose names appear upon the record in complainant’s behalf. This mere talk betw'een complainant and Mr. Sibley is not enough to invalidate or defeat the notice regularly served on the solicitors whom complainant had himself clothed with authority to represent him in the case; especially when neither Mr. Kerr nor his solicitor is shown to have known of these arrangements between complainant and Sibley. The proof also shows that Mr. James It. Stanberry of Newark, Ohio, had been retained in the case by complainant, and tha.t he had filed his written appearance among the papers in the case, but his name does not appear upon the bill, nor in any of the proceedings; and, even if it did, the service of the rule upon the resident solicitors for the complainant was, enough. Walker, Dexter &
As to the second point, the charge in the bill is that the notice served on Messrs. Tuley, Stiles & Lewis, who w’ere then acting as complainant’s solicitors, did not contain the paragraph that the court would be asked to enter a final decrée in the case. It appears from the proof that this notice was served on Mr. Stiles of this firm; and he testifies, in substance, that he does not think the notice, when served on him, contained this clause, and that he would not have admitted service if that clause had been included in the notice. No reason is perceived why an attorney should refuse to admit service of a notice in the regular course of the proceedings in a case because it contains information that the party giving the notice will ask the court to take some steps which the attorney on whom the notice is served is not willing to consent to. Admitting the mere fact that notice is served is not consenting to the right of the party serving it to have the order made which he is notified will be asked. The- admission is merely proof that the notice is served, not a consent that the party giving the notice is entitled to take the order he says he will ask for. It puts the attorney on whom it is served on his guard, and calls upon him to resist the motion he is told will be made, if he has objections to it. But the proof in this record shows to my mind quite satisfactorily that the notice, when served, did contain this clause. The letter-book of Mr. Brown, the solicitor for Kerr, is produced, and shows an impression copy of this notice, with this clause copied as part of the original notice. Mr. Brown, Kerr’s solicitor, testifies that he served an impression copy of the notice on Mr. Stiles; and I think from the evidence of the letter-book it shows that two impressions of this notice were taken, — that is, one for the copy which was served on Mr. Stiles, and the other upon the leaf of the letter-book. The clause in question was probably written after the body of the notice, had been written out and signed by the solicitor who gave it, as this clause is written in a somewhat close or cramped hand, not as an interlineation, but as an afterthought to the notice after it had been prepared and signed, but it is evidently in the same handwriting, written obviously with the same pen and the same ink, and is copied in the letter-book with the body of the notice in such a manner as to leave no doubt upon my mind that the notice is now in the same condition it was when served on Mr. Stiles.
As to the last point, it is apparent both from the proof in this case and from the record in the former case that John C. Dunlevy occupied a position hostile to the complainant in this original cause from and before the time of the filing of the original bill. They stood at arm’s length and in no relation of friendship or confidence that would justify any assumption that he was not entitled to adopt any tactics or method which would defeat the complainant’s bill, allowable under the rules and practice of the court. Whatever may have been the relations between them in law and in equity, there can be no doubt from the proof that John C. Dunlevy had from the filing of this first bill assumed a hostile position towards the complainant and denied all the rights and equities claimed by the complainant, and I see nothing in the proof which would authorize the complainant, under the circumstances, to expect anything from John C. Dunlevy but hostile action at every point where he could avail himself of it to defeat the original bill. Both John 0. Dunlevy and Kerr assumed by their answers positions which necessarily made it their common interest to act together to defeat the.'complainant. John C. Dunlevy was a lawyer, and, as the proof shows, co-operated with Kerr to defeat the complainant. Under such circumstances, what is more natural than that he should have known of the filing of this cross-bill, and perhaps advised it, if he thought it would subserve the interests of the defendants, or either of them? The allegation is that he filed this cross-bill without the knowledge of Kerr. But the'fact as shown by the proof is that it was filed by Mr. Brown, as the solicitor of Kerr, and I think the preponderance of the proof is that it wras with the full knowledge and approbation of Kerr. The fact that there is proof in the record showing that Kerr, two or three years after this decree was entered, stated that he knew nothing of the filing of the cross-bill, is fully explainable on the theory that he had no familiarity with technical or professional terms, and did not understand the full import of the question asked him. I'cannot ignore the positive testimony of Mr. Brown that he was directed by Mr. Kerr to file this cross-bill, because, as it seems to me, it was one of the methods which would naturally have been resorted to under the circumstances disclosed in the case as a means of defending against complainant’s original cause.
Much stress is laid by the complainant’s counsel upon the letter of Kerr to Mr. Dobbins, of October 15, 1878, from which it is argued that up to that time Kerr had no knowledge of or acquaintance with Brown, but an examination of this letter in the light of the history of this case, and of the litigation which Kerr had been subjected to in regard to the title to this land by Phillips and others, satisfies me that he was inquir
But it is strenuously urged in argument that John C. Dunlevy imposed upon the court, and obtained an unconscionable decree by the instrumentality of this cross-bill, of which, it is insisted, he is the sole author. The reply- to this is that the complainant was represented on the record by able and astute solicitors, whose duty it was to see that the court was not imposed upon to the complainant’s prejudice, and who were amply capable of ascertaining when leave was asked of the court, on notice to them, to file this cross-bill, whether the solicitors who proposed to file the cross-bill were authorized so to do or not, if such information was of value to them in the case. Then was the time to have challenged the authority of Mr. Brown to act for Mr. Kerr. The complainant and Kerr both lived in Ohio, and, as I gather from the proof, at no great distance from each other, and the fact whether Brown was acting by Kerr’s authority might easily have been ascertained at the time; and failure to ascertain and inform the court that it was being imposed on in the premises at the time of the concurrence ought, it seems to me, to silence complainant at so late a day as this. In fact the cross-bill contains nothing except the prayer for affirmative relief, which was not contained in the answers of both Kerr and John C. Dunlevy to the original bill.
The complainant may have had a meritorious case, and the equities may have been wholly with him both upon the original and the cross-
