70 N.J. Eq. 483 | New York Court of Chancery | 1905
One of the causes of demurrer specified is that the bill, which is endorsed “bill of review,” does not allege that it was filed with leave of the. court. It is conceded by counsel for the complainant that if the bill is in-fact a bill of review, as the solicitor' for the complainant evidently thought it was when he filed it, the point taken is fatal on demurrer. Story Eq. Pl. (7th ed.) § 421b; 2 Dan. Ch. Pl. & Pr. 1578, 1579. In order to avpid the objection above set forth, counsel for complainant endeavors
I do not think that this view of the bill is tenable. It attacks the decree on some grounds which may properly be presented to the court upon a bill of review, but, in my judgment, cannot be presented to the court in any original bill filed without leave.
Bills of review frequently are based upon or necessarily involve charges of perjury, forgery and other fraud. The distinction between bills of review alleging fraud from original bills to impeach a decree on account of fraud has not always been sharply drawn. Leaving the decrees of foreign courts out of view, the former class of bills seems to include the latter. See discussion of the nature of the fraud necessary to sustain a bill to impeach a judgment 'or decree on account thereof by Vice-Chancellor Van Fleet, in Dringer v. Receiver of Erie Railway, 42 N. J. Eq. (15 Stew.) 573, 582; also opinions of Lords-Justices James and Baggallay, in Flower v. Lloyd, 10 Ch. Div. 333, 334; 2 Freem. Júdg. § 439.
In the present case there seem to be three charges of fraud contained in the bill. Two of these charges, which may be considered together, are in effect that the defendant in his original suit falsely represented that he had been a resident of New Jersey for two years, when in fact he was a resident of New York, and that the defendant also falsely alleged that the complainant had deserted him, whereas in fact the defendant had deserted the complainant by driving her away from their place of abode. These charges of fraud, it must be conceded, are not distinctly made. The bill does not allege that the complainant was sworn in the cause and falsely testified to these things. A close examination of this bill illustrates the propriety of the rule which requires the party desiring to file a bill of review to submit his case to the court on petition and obtain an order permitting the bill to be filed, which order is to a large extent-
The bill also charges that the defendant knew that the complainant was a resident of the State of New Jersey when he brought his suit for divorce, and could readily have ascertained her address, and it is the evident intention of the framer of the bill to make it appear that the defendant fraudulently procured the divorce suit to bé conducted as against an absent defendant,
There is another reason, in my opinion, why the complainant’s bill should be deemed strictly a bill of review. The complainant had no notice of the divorce suit which the defendant brought against her. She had no opportunity to be heard. The cause was tried ex parte. She now comes forward, alleging her surprise, her lack of opportunity to present her case, and offers proofs that fraud was practiced and injustice done which would not have occurred if she had had an opportunity to present her defence. In this sort of a case no bill of review is necessarjr, even though the decree has been enrolled. Brinkerhoff v. Franklin, 21 N. J. Eq. (6 C. E. Gr.) 334; Cawley v. Leonard, 28 N. J. Eq. (1 Slew.) 467 (Court of Errors and Appeals, 1877); Day v. Allaire, 31 N. J. Eq.(4 Stew.) 303, 315 (Court of Errors and Appeals, 1879); Richardson v. Richardson, 67 N. J. Eq. 437 (1904). The last-cited case is very nearly on all fours with the present one, although the defendant therein, the wife, had notice of the suit. She was, however, deprived of her opportunity to
In Clayton v. Clayton, 59 N. J. Eq. (14 Dick.) 310, and Watkinson v. Watkinson, 67 N. J. Eq. 142, Vice-Chancellor Pitney deals with the general" rule requiring a bill of review where the party aggrieved by a decree makes his complaint after the enrollment. The learned vice-chancellor was not dealing with the exception to this rule illustrated in the cases above cited,- and in this case where the decree has been obtained ex parte, and' the party aggrieved by it has had no opportunity to make the defence which otherwise he would have put in. In both of the last-cited cases the complainant had full notice of the suit in which the decree was made of which she complained.
Of course, upon applications by petition,' the court can exercise the same discretion as upon applications to file a bill of review, and in the same way recognize and protect all new intferests. Where the party aggrieved by a fraudulent or unjust decree is able to obtain full relief upon a petition for the vacation of the enrollment and the opening of the decree, it seems to me that in many if not all cases an application for leave to file a bill of review ought to be denied. If this bill should be regarded as an original bill to impeach a 'decree for fraud, the court would lose this wholesome control over the case.
In my opinion, the application by petition in the cause to vacate the enrollment and open the decree is to be encouraged, if not exclusively prescribed, in all cases where such procedure will accomplish justice. I am also-of opinion that the bill 'of review is to be preferred to the original bill, filed as of right without leave, and this last-named bill should be left to that comparatively small class of cases, perhaps not as yet fully defined, in which the remedy by an application in the cause for a rehearing or a new trial and the remedy by a bill of review are inapplicable or inadeefuate.
It should be observed that we are not dealing with foreign judgments, which are open to impeachment on the ground of
To compel the party injured by a fraudulent judgment of a foreign court to seek redress in the cause or in the court in which the judgment was rendered would be to compel such defrauded party, although a citizen of New Jersey, to go to a foreign state for justice.
In the case of judgments and decrees of our own courts the present policy of the law, in accordance with considerations of simplicity, cheapness and common sense, should be, I think, to require the party alleging that the judgment or decree is tainted by fraud to seek his remedy in the action at law or suit in equity in which the judgment'or decree was rendered, when that remedy is adequate, rather than to commence an independent original and expensive suit in this court. This policy is illustrated by the withdrawal of the exercise of jurisdiction by this court on bills for new trials. As fast as the power of the courts of common law has been extended, so as to permit those courts to set aside judgments and grant new trials on the ground of fraud, mistake or newly-discovered evidence, the exercise of jurisdiction by this court has been renounced and curtailed. Hayes v. United States Phonograph Co., 65 N. J. Eq. (20 Dick.) 5 (1903) ; Wolcott v. Jackson, 52 N. J. Eq. (7 Dick.) 387; Hannon v. Maxwell, 31 N. J. Eq. (4 Stew.) 318.
My conclusion is that this bill must be deemed a bill of review, and cannot be deemed an original bill hied as of right to impeach a decree for fraud. If the complainant in fact has obtained leave to file this bill as a bill of review, upon notice to the defendant, an amendment may be made alleging such fact. If no leave in fact has been obtained, then, upon application for such leave, the court will not only look into the merits of the case, but also determine whether, if the complainant’s case calls for an investigation by this court, such investigation should be made on petition in the original cause to vacate the enrollment and open the decree or by a bill of review.
I shall advise an order that the demurrer be sustained.