45 F. 299 | U.S. Circuit Court for the District of Colorado | 1891
(after stating the facts as above.) This bill sounds in damages only. It seeks to recover damages for the alleged illegal conversion of the stocks, and consequential damages resulting from the conversion. Confessedly, a court of equitj*- would have no jurisdiction of the case upon original .bill; but it is urged that a supplemental bill is but a continuation of the original case, and that equity, having jurisdiction for some purposes, will retain it for all, although some of the matters, if taken separately, would be exclusively cognizable in a court of law. Conceding this to be so, it does not meet the difficulty in the plaintiffs’ case. The matter upon which the supplemental bill is based was known to the plaintiffs within a few days after the original bill was filed, and before any answer had been filed thereto. Indeed, the bill anticipated the sale of the stocks on the day they were advertised to be sold, viz., 28th September, 1885, and contained a prayer adapted to that state of case. The old rule that nothing can be inserted in an original bill by way of amendment which has arisen subsequent to the commencement of the suit has been abolished in England, and, if not abolished, very much relaxed, in this country. Mr. Daniell says:
“ The rule which formerly existed, that a plaintiff ought not to introduce facts by amendment which have occurred since the filing of the original bill, has been abolished, and the facts and circumstances occurring after the institution of a suit may be introduced into the bill by amendment, if the cause is otherwise in a state in which an amendment may be made, and, if not, they may be added by supplemental statement.” Daniell, Oh. Pr. pp. 406, 407.
But this case falls within one of the exceptions to that rule, viz., that a bill may be amended by adding new or supplemental matter any time before the defendant has put in his answer. Story, Eq. Pl. § 885. The plaintiffs having alleged in their hill that the stocks would be sold on the day they filed their hill, and having knowledge of the sale within a few days after it was made, and before the defendant had answered, it was competent for them, under equity rule 28, to have amended the bill, by setting up the fact that the stocks had been sold in pursuance of the notice set out in the bill, and adding such prayer as they saw proper. It is doubtful whether any amendment was required to bring the matter into the account. Mr. Barbour says:
“Under a general decree for an account, the accounts may be taken down to the time of the report, without filing a supplemental bill as to matters which have arisen since the filing of the original bill.” 2 Barb. Ch. Pr. p. 63.
But no opinion is expressed as to the applicability of this rule to this case. The plaintiffs, with full knowledge of the sale of the stocks, made no amendment, but rested on their original bill. Where the end may be obtained by an amendment, a supplemental bill will not be allowed. 1 Hoff. Ch. Pr. 391; Mitf. Eq. Pl. 49. The cause went to a master to state the accounts. The prooís taken before the master showed the sale of stocks, and the proceeds of the sale were taken into consideration in stating the account. The plaintiffs did not except to the master’s report, or at least insisted on none at the hearing. The cause was pending-more than four years; and, more than five years after the plaintiffs had
The bill comes too late. It is well settled that a supplemental bill brought for new matter must be filed as soon as practicable after the matter is discovered.
“To entitle a party to flic such a bill, it is necessary that the new matters should be discovered after the decree, or at least after the time when it could have been introduced into the cause; because a party is not to be permitted to amend his case after the hearing, in respect of matter which was before in his power. It has been decided with a reference to a bill of this nature that the question always is, not what the complainant knew, but what, with reasonable diligence, he might have known; and the decisions with regard to bills of review upon facts newly discovered appear to have been upon new evidence, which, if produced in time, would have supported the original case, and are not applicable where the original cause would not have admitted the introduction of the evidence as not being put in issue originally. Where a party was aware of the fact in question, or, by reasonable diligence, could have acquired the information, before the decree, he should have filed a supplemental bill shortly after the discovery, or after gaining that information which could put him upon inquiry. He cannot, in such a case, resort to this bill after going to a decree.” 1 Barb. Ch. Pr. pp. 363, 364.
Ur. iloffinan states the rule in this language:
“A party will not be permitted to file a supplemental bill when ho has submitted or agreed to a decree, after full knowledge of the facts which he seeks to bring forward by the supplemental bill.” 1 Hoff. Ch. Pr. p. 398.
And the rule is stated in the same terms by Judge Story. Story, Eq. Pl. §§ 388a, 423; Daniell, Ch. Pr. 1537, and note; 2 Barb. Ch. Pr. 60, 61. If á party proceeds to a decree after the discovery of the facts upon which the new claim is founded, ho will not bo permitted after-wards to file a supplemental bill founded on such facts. Daniel!, Ch. Pr. 1523, note 2. It is a general rule of equity practice that leave must be obtained to lile a supplemental bill, and equity rule 57 by implication requires it. Daniell, Ch. Pr. 1523, note 2; Id. 1537, note 2; 1 Hoff. Ch. Pr. 403. But the objection that the bill was filed without leave is not matter for demurrer, but only ground to dismiss, in the discretion of the court. The supplemental bill discloses on its face the fact that it was not filed in time, and the defect may be reached by demurrer. Treating the demurrer as a plea, the result would be the samo on the facts disclosed by the record. The demurrer is sustained, and the bill dismissed.