11 W. Va. 482 | W. Va. | 1877
delivered the opinion of the Court:
The question presented by this record is : Can a consent decree, alleged to have been, through the mistake of the parties, different from what they really intended, be in any manner modified so as to correspond with what the parties really intended to agree to as the decree to be entered, or should the consent decree, where such a mistake has occurred, be set aside and annulled in toto; and in either case, how is such modification, if allowable, or such annulling of the decree to be effected; can it be done by any mode of proceeding in the cause, in which the decree was entered or must it, in every case, be done by a separate suit, brought for this express purpose ?
Before considering this question it will be necessary to have a clear conception of the modes of modifying or annulling the decrees of a chancery court, other than consent decrees. The mode of so doing differs in this State considerably from the modes adopted in England and in some of the states of the Union. This difference is caused principally by our having never adopted the English practice of enrolling decrees. By this English practice the decree, whatever its character, is first entered in the registrar’s book; but this entry does not, strictly speaking, make it a record. It is subsequently enrolled upon parchment, when it is regarded as a complete and perfect record. The time, which intervenes between this entry of the decree on the registrar’s books and the enrollment of it on parchment, is generally considerable. During this intervening time, the record not being regarded as complete and perfect, the decree may be modified or annulled for errors appearing on the face of the record, upon a petition for a re-hearing, whether these errors be errors in the judgment of the court, or errors arising from inadvertence; though, if the error be
It would be difficult to determine whether the consent decree in,the case before us is an interlocutory or a final decree. I am inclined to think it is a final decree; but it is unnecessary, in this case, to determine its character, as we shall presently show that if the decree be a consent decree, the manner of setting it aside and declaring it a nullity is the same, whether it be an interlocutory or a final decree. It may be here remarked, that in this State and in Virginia it is unusual to file a supplemental bill in the nature of a bill of review, to correct an interlocu
"Where a final decree has been procured by fraud, it should be annulled,or modified, not by a bill of review proper, but by an original bill, or by an original bill in the nature of a bill of review: Anderson v. Woodford et al., 8 Leigh 316; Mussell v. Morgan, 3 Bro. Ch. Cases 74; Murns v. Worrell, 16 Barb. 221; Sandford v. Sandford, 5 Cal. 297; Evans v. Bacon, 99 Mass. 213; Johnson et al. v. Johnson et al., 3 Ill. 215; The Bank of the United States v. Ritchie, 8 Pet. 128. Possibly if the decree has been rendered by default, it might be corrected otherwise than by an original bill: Evans v. Vint, 6 Munf. 267 and authorities cited. The reason why a final decree procured by fraud cannot be reversed on a bill of review
Let us now consider how consent decrees can be modified. During the term of the court, at which a decree is entered, it is completely under the control of the court, and may on motion, or at the suggestion of the court without motion, be modified or annulled: Burch v. Scott, 1 Gill & J., 398. A decree procured by fraud may be so set aside during the term of the court, at which it was made, but not afterwards. See Doss v. Tyack, 14 How. U. S. R. 297. And the same rule would apply to a consent decree; but from the very nature of a consent decree, it cannot be altered or modified, except by consent, unless there has been a clerical mistake, for though the court be satisfied that the parties had formerly agreed to have a decree, in substance, such as the modified one entered, which, by a mistake other than clerical, was not entered, but a different decree entered, how can the court enter this modified decree as a consent decree, when one of the parties is present and protests against its being entered as by his consent? The entry of a consent decree is a statement on the record, not that theretofore the parties agreed to enter such a decree, but that they now (when the decree is entered) consent to its entry. And if they do not, when it is to be entered, consent to the court’s entering it, it cannot
The next inquiry is: Can a consent decree be set aside; if so, how ? It seems to me clear both on principle and authority, that except in the before-stated cases, no consent decree can be set aside, whether it be interlocutory or final, by any subsequent proceedings in the case. If the consent decree has been entered through the fraud of one of the parties, or through mutual mistake, or by surprise, it may be set aside and annulled by a new suit, in which the bill would set out the facts constituting the fraud, surprise or mistake; and the decree thus procured, though it purported to be a consent decree, would be annulled. But a consent decree, though its entry had been thus induced, can never be set aside on motion, petition for a re-hearing, bill of review, appeal, or
Chancellor Blond in KingokPs case 1 Blond’s Ch. "R., p. 12, says: “ In order that an appeal may lie, the decree or order appealed from must have been adverse, and not made by the express or tacit consent of the appellants; as when a party thinks proper not merely to decline opposition to measures which the court would enforce, but by himself or his counsel consents to a decree or order, there lies no appeal from it, even although 'he gave no such authority to his solicitor^ his remedy being against his counsel.” In French v. Shotwell, 5 Johns. Ch. R. 564, it was decided that a decree entered by consent is binding and conclusive on the parties; but if.it was procured by fraud, it could be set aside in a suit brought for that purpose; and if was entered in form different from what was intended by the parties or either of them, by mistake, accident or sur
Decrees Beversed, and cause remanded.