7 Blackf. 52 | Ind. | 1844
— This was a bill of review brought, on leave, by Housh against Gulletts heirs, in the Probate' Court of Jackson county, at the August term, 1839. The bill sets forth that Gulletts heirs, by Judy their guardian, in January, 1831, filed their bill (reciting it) in that Court against Housh as the administrator of their father’s estate, the object of which was to recover their distributive shares thereof. The bill of review also states, that the parties to the original bill appeared in Court from term to term until that of March, 1832, when the defendant had ■ leave to file his answer ten
This decree cannot be sustained. The bill of review shows on its face no equity ; and this is a good cause for dismissing it, which may be urged on final hearing.
Bills of review can be sustained only in two cases. One is where there is error of law apparent upon the face of the record; and the other, where new matter has been discovered since the decree, or, at least, after the publication of the testimony. Story’s Eq. PI. pp. 322, 328.
The bill before us does not present either of these cases.
The first cause assigned for a review and reversal of the
The other cause on which he rests his claim to a review and reversal of the decree, is not, in truth, an allegation of the discovery of new and material facts after its rendition. It shows that the payments, the benefit of which he claims, were made by himself and by his direction before the decree. He must, of course, have been aware of their existence, and might have urged them had he made defence against the original bill. The bill of review does, indeed, state that Housh ascertained, after the decree, that he could prove one of the payments by a certain witness, and two of them by the subsequent admissions of the guardian of the original complainants. But to bring himself, on account of these matters, (allowing such admissions to be competent evidence, with regard to which we express no opinion,) within the principle of relief on the ground of newly discovered facts, he should have shown that he could not have proved the payments by any other testimony. This would have been the case had he been guilty of no laches in the original suit. Having negligently failed to defend himself in that suit, there is no pretence for claiming relief by a bill of review on account of the discovery of the testimony above stated.
There may be error apparent in the original record, but none is specified, as it should be, if relied • on in a bill of review. But had such error been assigned, it could not have availed the complainant in review. His bill was filed more than five years after the rendition of the decree sought to be reversed, and the defendants have claimed the benefit of the statute of limitations. That statute is a bar to a bill of review. Jenkins v. Prewitt et al. 5 Blackf. 7.
— The decree is reversed with costs. Cause remanded, &c.