Foy v. Foy

| Miss. | Oct 15, 1852

Mr. Justice Yerger

delivered the opinion of the court.

On the 18th of June, 1850, the appellant filed a bill for the purpose of opening a final decree, rendered at the April term of that court, and for a rehearing of the cause. The original suit was tried upon its merits, upon bill, answer, and proof. The grounds taken for relief in the record before us are : 1st, that the testimony on which the original decree was rendered is false; 2d, that the party had no personal notice of the time and place of taking that testimony; 3d, that his solicitor, -upon whom the notice was served, was ignorant of his post-office, and on inquiry, could not find it out so as to give him the requisite information ; and 4th, that the complainant, for several months before the depositions were taken and the case was tried, had been in exheme ill health, confined to his home, and unable to travel even a short distance without pain ; and had, therefore, been unable to see his counsel, or to take the necessary steps to prepare the case for trial, by putting his counsel in possession of the facts, that would have shown the falsity of the. testimony taken by the opposite party. The vice-chancellor sustained a demurrer, and dismissed the bill.

1. This bill cannot be sustained as a bill of review or a bill in the nature of a bill of review. Bills of that character can only be maintained for error apparent on the face of the pleadings and decree, or for new matter discovered since the date of the decree, which the party'could not make use of on the trial or on a petition for a rehearing. 3 Daniel, Ch. Prac. 1727; 13 Peters, 13.

2. Neither can this bill be sustained as a petition for a rehearing. Petitions for rehearing can never be filed after the enrolment of the decree. 3 Daniel, Ch. Prac. 1620. Such was the rule of practice in England. But by a rule of court in this State, the petition for rehearing must be presented within five days after the decree pronounced. Under any circumstances, it is too late to apply for a rehearing after the expiration of the term of the court. Rule 26; Freem. Ch. R. 24; 13 Peters, 13.

3. But the facts stated by the bill do not, in our opinion, entitle the party to the relief sought. On the proof before the chancellor in the original suit, the decree is admitted to be right, and the application is now made to reexamine that case, in order to impeach the charactér of the witnesses, on which testimony the decree was rendered. This cannot be done. 3 Johns. Ch. R. 124

But again; notice to take the depositions in this case was served upon the solicitor of the appellant. This is all that the law required. Hutch. Code, 770, art. 12, § 2.

It is no excuse, that the solicitor did not know the party’s post-office. A special messenger might have been sent if necessary, or the party should have informed his solicitor, on employing him, to what post-office his letters should be directed.

Nor will the ill health of the appellant excuse him. He might and ought to have sent an agent to see his solicitor, if not well enough to go himself. Upon all the facts stated in the bill, we are unable to pronounce, that any injury has been sustained by the appellant, which ordinary prudence and diligence would not have prevented.

Decree affirmed.