| Mich. | May 11, 1869
We can pay no attention to the proceeding in the circuit allowing a bill of review. The 'decree complained of is a decree made by this court sitting as a court of last resort; and if any such bill can be permitted at all, it can only be done by the leave of this court. — Southard v. Russell, 16 How. R. 547; Stafford v. Bryan, 2 Paige, Ch. R. 47.
Nor is there any force in the suggestion that our decree has not been enrolled. Decrees in this court are never made in any other way than by entry on the journals. The decree, therefore, which was sent down to the circuit for execution, was final and complete.
It certainly seems a novel proposition that a re-hearing or review should be granted in this court after judgment actually entered and remitted to the circuit. It' seems to be laid down quite generally that the House of Lords (whose practice we follow principally in appeals), will not review its decisions. — Attorney General v. Ward, 1 Myl. & Cr. 449; Brown v. Aspden, 14 How. R. 25; Mitf. Eq. Pl. 79; People v. Mayor, 25 Wend. R. 252.
And it would be out of the question to have a rehearing in this court on any new facts or case, because we can only review or hear a case on the record as it comes up from the court below. — Sears v. Schwartz, 1 Doug. R. 504.
If there can be any relief it must be by permitting some proceeding to be had below, based upon a showing of some new facts which were not before us. If there is power to grant this relief it can only be for the same reasons which would justify the court below in granting it where there has been no appeal.
Upon the other points no equity whatever has been made out. The condition of the title was directly involved in the suit. It was discovered before the hearing that the deeds now offered were neither alleged nor proved, and after a hearing under such circumstances there could be no propriety in opening the case for that omission. But as the rights of Samuel D. Eldred under his contract, are the same in equity whether those deeds are proven or not, the defect becomes immaterial.
As the knowledge by Francis S. Eldred of the contract was shown by 'proof in the cause, any evidence to rebut it should have been introduced before hearing. He was a competent witness, and the only one likely to have known that fact, and there can be no possible excuse for not calling him. His affidavit now produced, moreover, does not deny the notice positively, and the proofs are quite as satisfactory to our minds.
It also appears that the execution proceedings were,- or should have been, known before the hearing, as there are proofs in the cause directly referring to them. But these also are immaterial, for until a' deed is obtained from the sheriff no possession can be obtained under ah execution title. ■ This deed was made after our decree, and the account, therefore, includes nothing that could interfere with it. If there should be any equities between Eldred and Bunker, these parties are not concerned with them.
There is no ground for relief shown, and the application must be denied, with costs.