Liebing v. Matthews

216 F. 1 | 8th Cir. | 1914

SMITPI, Circuit Judge

(after stating the facts as above). There are nine assignments of error. The first, second, third, and fourth are that the court erred in denying and dismissing the application of complainants for leave to file a supplemental bill. The fifth is that the court erred in dismissing the complainants’ original bill without making a finding of facts. The sixth is that the court erred in dismissing the complainants’ bill without finding that it did not show any equity. The seventh and eighth are that the court erred in refusing to grant a rehearing and in overruling the prayer of such petition for rehearing. The ninth the court erred in entering a judgment against the complainants.

It appears that the complainants were given four separate and distinct opportunities to redeem. First, under the original option at any time before Aiarch 12th. Instead of availing themselves of this option they commenced this suit on March 1, 1912, for the May term of that year. On May 6th the defendants voluntarily offered the complainants until the June rules, 1912, to make such redemption. Two weeks later this was accepted, but on June 3d in their reply they said they were not able to comply by the June rules. Third, on June 26th, they signed an agreement extending the right of redemption to October 1st, and on that date complainants filed a petition asking to be allowed to file a supplemental bill, and on October 25th the parties all appeared before the master, who extended the time for redemption to November 8th, but although no exceptions were filed to the master’s action,' the complainants failed for the fourth time to redeem.

[1] All the proceedings in this case took place prior to February 1, 1913, and they were therefore governed by the rules in equity which existed from 1866 to 1913. Rule 57 expressly contemplated leave of court to file a supplemental bill. The question at once arises, when leave of court is thus required, To what extent can the court’s action be reviewed by an appellate court?

It has repeatedly been held that there can be no review of the exercise of the discretion of the lower court in allowing or refusing to permit amendments. Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. 800; Gormley v. Bunyan, 138 U. S. 623, 11 Sup. Ct. 453, 34 L. Ed. 1086.

In Walden v. Craig, 9 Wheat. 574, 6 L. Ed. 164, the Supreme Court pursued the rather unusual course of first pointing out that the action of the court below was erroneous in this respect and then concluded: “But the course of this court has not been in favor of the idea, that a writ of error will lie to the opinion of a circuit court, granting or refusing a motion like this.” See Dietz v. Lymer, 61 Fed. 792, 10 C. C. A. 71; Philip Schneider Brewing Co. v. American Ice Machine Co., 77 Fed. 138, 23 C. C. A. 89, and Lange v. Union Pacific R. Co., 126 Fed. 338, 62 C. C. A. 48.

A supplemental bill is a mere adjunct to the original bill. Shaw v. Bill, 95 U. S. 10, 24 L. Ed. 333.

And the rule with reference to amendments has been applied to applications to file supplemental pleadings. Sawyer v. Piper, 189 U. S. 154, 23 Sup. Ct. 633, 47 L. Ed. 757; Vicksburg v. Vicksburg Waterworks Co., 202 U. S. 453, 26 Sup. Ct. 660, 50 L. Ed. 1102, 6 Ann. Cas. 253; Oregon & Transcontinental Co. v. Northern Pac. R. Co. (C. C.) 32 Fed. 428; Sheffield & B. Coal, Iron & Railway Co. v. Newman, 77 Fed. 787, 23 C. C. A. 459. And to a bill of review. Ricker v. Powell, 100 U. S. 104, 25 L. Ed. 527.

These and others cited in them vary as to the terms of the rule, some saying the subject cannot be considered in the appellate court, others that in the absence of gross abuse of discretion in the trial court it cannot be so considered. In any event we cannot consider the first, second, third, and fourth assignments of error because, in view of the fact that complainants had been accorded four separate opportunities to redeem, we cannot say that in refusing the application to file a supplemental bill the court was guilty of any gross abuse of discretion. By this, however, we do not intimate that the District Court was in error at all in his rulings. This disposes of the first four assignments of error.

[2] Turning now to the seventh and eighth assignments, which are in relation to the petition for rehearing, Mr. Justice Field, in Giant Powder Co. v. Cal. Vigorit Powder Co. (C. C.) 5 Fed. 197, said: “Rehearings are then granted * * * only upon such grounds as would authorize a new trial in an action in law.” Bearing this in mind, it has been so long settled that the ruling on a motion for a new trial cannot be reviewed in an appellate court as to "scarcely require the citation of authorities. Arkansas Valley Land & Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854; Wright v. Hollingsworth, 1 Pet. 165, 7 L. Ed. 96; United States v. Buford, 3 Pet. 12, 7 L. Ed. 585; Philip Schneider Brewing Co. v. American Ice Machine Co., 77 Fed. 138, 23 C. C. A. 89.

It follows that these assignments, Nos. 7 and 8, cannot be considered.

[3] Turning now to the fifth, it was expressly stipulated between the parties that:

“Under no condition or circumstance shall the time to exercise said option to repurchase said property be extended beyond the first of October, 1912, nor shall a further extension or a right to repurchase said property under said option be ashed or sought in any way or form whatsoever.”

And further:

“A failure on the part of the said complainants to exercise their right to repurchase the property under the terms and conditions as herein provided, shall ipso facto operate as a dismissal of this action and they shall be forever barred from instituting or prosecuting any other suit or action relative to the subject-matter herein or growing out of or connected with the same.’'

There is no rule in equity that the court shall in its decree find all the facts necessary to sustain the decree except where, as in Peirsoll v. Elliott, 6 Pet. 95, 8 L. Ed. 332, in the absence of a finding of facts, it would be impossible to tell what the decree in fact meant.

Turning now to the sixth and ninth assignments, the evidence upon which the court acted is not before us, nor is there anything to .show there was any such evidence, but if the evidence failed to show that complainants had paid the money required by October 1st, then under the express terms of the stipulation just quoted the bill was to be dismissed.

There is no error apparent, and the decree of the District Court is affirmed.