57 Miss. 465 | Miss. | 1879
delivered the opinion of the court.
A bill of review for error apparent on the face of the decree is in the nature of an assignment of errors, on writ of error, and the error must appear on the face of the pleadings, proceedings, and decree, without reference to the evidence. The propriety of the decree, as not justified by the evidence, cannot be questioned by bill of review, which is not a substitute for an appeal from the decree. The question presented by a bill of review for error apparent is, whether the decree rendered is supported, taking everything as stated by the record, excluding the evidence, to be true. Under our system, all the pleadings, proceedings of record, and decree may be looked to on a bill of review for error apparent. The evidence cannot be. The authorities to this effect are numerous, and need not be cited. They all agree.
A demurrer is the proper and usual defence to a bill of review for error apparent, for that amounts to an assertion that there is no error in the decree ; or, if the decree sought to be reviewed is not fairly stated in the bill of review, a plea of the decree, and a demurrer against opening the enrolment, is the proper defence. Story Eq. Pl. §§ 634, 833 ; 2 Dan. Ch. Prac. 1583; Lube's Eq. Pl. 336; 2 Smith Ch. Prac. 56. Ordinarily, there is no answer to such a bill of review, except in nullo erratum est. Cook v. Bamfield, 3 Swanst. 607; Lube’s Eq. Pl. 337; Mitford & Tyler’s Pl. & Prac. 298. But if there be any matter beyond the decree available as a defence to the bill of review, that matter should be pleaded. Hartwell v. Townsend, 2 Bro. Parl. 107; Webb v. Bell, 3 Paige, 368; Turner v. Berry, 3 Gilman, 541; Story Eq. Pl. § 833 ; 2 Dan. Ch. Prac. 1583 ; Lube’s Eq. Pl. 336. As the demurrer presents an issue of law only, the effect of the decree overruling it is to open the decree reviewed. Cook v. Bamfield, ubi supra; Guerry v. Perryman, 12 Ga. 14. Upon opening the enrolment of the decree, as it is called in technical language, by maintaining a bill of review for error apparent, the par ties are at liberty to proceed as at a rehearing, it is said. Catterall v. Purchase, 1 Atk. 290 ; Kenner v. Smith, 8 Yerger, 206; Payne v. Beech, 2 Tenn. Ch. 708 ; Lube’s Eq. Pl. 336. But upon overruling a demurrer in such case, the
If the justice of the cause requires that it should be reheard, that course should be pursued. If the demurrer be overruled, the question arises, What decree shall be made ? The answer is, Such decree as is proper on’ the whole cause. The enrolment being opened on the review, that decree should be rendered which is proper on the whole cause, considered as if heard for the first time. The decree being reviewed, the cause stands for hearing as if a decree had not been made, and the next inquiry is, Shall it be reversed, and what decree shall be made ? Lube’s Eq. Pl. 336. Manifestly, when the enrolment is opened for error apparent,that decree should bemade which should have been made at first, for the court, having full control of the cause as if it had never been heard before, should make the proper disposition of it. If the error apparent goes to the right of the complainant to maintain his bill, it is proper to proceed at once, Avithout a rehearing, to reform -the decree. Carey v. Giles, 10 Ga. 9. But where this is not the case, and a rehearing is asked for, it should be allowed, if sufficient reason is shown therefor. Lord Hardwicke said: “ After the demurrer [to a bill of review for error apparent] is overruled, the plaintiffs are at liberty to read bill or answer, or any other evidence, as at a rehearing, the cause being now equally open.” Catterall v. Purchase, 1 Atk. 290. See Kenner v. Smith, 8 Yerger, 206.
Applying the above stated rules to this case, we conclude that the decree in the original cause is erroneous on its face, because it is not warranted by the case made by the bill, and
The defendants to the bill of review, who were complainants in the original bill, instead of demurring to the bill of review, or pleading the decree, answered the bill of review, admitting the errors in the decree it assigned, and added to this answer a cross bill, setting up an alleged equity independent of that claimed in the original bill. The demurrer to this cross bill was properly sustained, both because it was inadmissible as a mode of defence to the bill of review, and because it showed no right to charge the land. Hargrove v. Baskin, 50 Miss. 194. The admission, by the answer, of the errors assigned by the bill of review entitled the complainants therein to a vacation of the decree. The cause then stood as if it had not been heard, and if a rehearing was had upon the pleadings and evidence, the result must have been a dismissal of the original bill, which, according to the view expressed above, did not state a case entitling the complainants to a decree. The record does not inform us whether there was a formal rehearing of the cause or not; but as the answer, admitting the errors assigned by the bill of review, justified a vacation of the decree, and no application was made by the complainants in the original bill for a rehearing, or in any manner to vary the state of the cause, as existing when the decree, properly vacated, was made, we conclude that the court rightly proceeded to render the decree which should have been rendered on the first hearing.
This case was treated in the court below, and here, by counsel as a sti'ict bill of review for error apparent on the face of the decree, and we have discussed it accordingly. But as the complainants in the bill which attacks the decree are minors, complaining of an improper decree made against them, they