Scotten v. Rosenblum, 231 F. 357

Scotten v. Rosenblum

231 F. 357 | S.D.N.Y. | 1916

LEARNED HAND, District Judge

(after stating the facts as above). [1-3] The bill is presented in several aspects; as a bill of review, as a bill to reopen a judgment for fraud, as a bill for a discovery. As a bill of review, it cannot be for error appearing upon the record, since it does not appear from the bill that there was any error appearing upon the record of the action of the plaintiffs against Rosenblum. The decision does not contradict the judgment, and there is no reason to stippose that it was erroneous, except from the allegation that Rosenblum’s attorney “wrongly” entered the judgment, which is a mere conclusion of law. As a bill of review for newly discovered evidence, it will not serve, because no evidence is suggested which would support a different conclusion, unless it be found in the affidavits of David N. Carvalho and Milton Foreman. These are not parts of the bill, but as they may be made such upon an amendment, it is well to consider their contents now. Foreman was the attorney of the plaintiffs in that action, and swears on February 25, 1914, that in January, 1910, Rosenblum had admitted the claim, and allegation also contained in the bill. It nowhere appears that the trial of the action was before January, 1910, and that this evidence was not available at the time. The reasonable inference is the contrary. Carvalho swears that on December 3 and 4, 1913, he compared Rosenblum’s signature in the certificate with his signature on a certificate of incorporation, and found them the same. It does not appear that this was after the trial of the action, and if it did, it would amount-to nothing, because the evidence was available at any time after the certificate was filed. I do not mean to consider how far a motion in the action itself for a new trial, being an appropriate remedy, would, in any event, cut off the right to a bill of review. I dispose of the matter on the merits.

[4] Under its aspect as a bill for discovery in aid of the action at law against Rosenblum, the bill is likewise bad. It is quite possible that since Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, 55 L. Ed. 842, a bill for discovery of documents in aid of an action at law will still lie. This seems to be the effect of the language of Mr. Justice Lurton, on page 539 of 221 U. S., on page 683 of 31 Sup. Ct., 55 L. Ed. 842, and this was the opinion in Colgate v. Compagnie Franchise, etc. (C. C.) 23 Fed. 82, although it was generally thought-before Carpenter v. Winn, supra, that the discovery available at law under section 724, Rev. St. (Comp. St. 1913, § 1469), had superseded discovery of documents in equity. Safford v. Ensign Mfg. Co., 120 Fed. 480, 56 C. C. A. 630. See, also, the language of Mr. Justice Peckham as to section 724 in United States v. Bitter Root Co., 200 U. S. 451, 475, 26 Sup. Ct. 318, 50 L. Ed. 550.

But that question need not be decided in this case, because even under the old rule it was never possible for a party in an action at law to wait until after verdict and judgment in order to apply for discovery (Brown v. Swann, 10 Pet. 497, 9 L. Ed. 508), *360unless there was some charge of accident, surprise, or fraud. It is true that in that case the judgment had been entered by consent, but that was not the basis of the decision, which'rested again upon the general rule that, such delay in the absence of some excuse was fatal.

[5, 6] Furthermore, no case is made in any event for the discovery of documents, because no evidence is stated in the bill from which it appears that Rosenblum had possession of any documents which are material to the action at law. The proper course, laid down in rule 58 (33 Sup. Ct. xxxiv), has been entirely disregarded, but it would make no difference if it had been followed, because there appears to be nothing to inspect. As a bill for discovery to put Rosenblum on his oath, it is clearly obsolete, since the remedies now given at law in allowing parties to be sworn are adequate for that purpose, and the whole basis of bills for discovery by answer to the charges of the bill lay in the disqualification of parties to testify in a court of law.

[7, 8] The final defense of the bill is as a bill to reopen a judgment at law upon tire ground of fraud or newly discovered evidence. In the last point Pickford v. Talbott, 225 U. S. 651, 32 Sup. Ct. 687, 56 L. Ed. 1240, controls. The evidence must not have been available at the time of the first trial. The bill is really indistinguishable in that aspect from a bill of review for newly discovered evidence. As a bill for relief for fraud, the bill is lacking in any specific allegations of fraud, but that I will pass by because it may be cured by amendment, and I wish to dispose of the matter upon the merits. The only conceivable ground of fraud which could arise from the allegations is that Rosenblum fraudulently denied his signature on the snerifFs certificate, and therefore'perjured himself. This is not enough, when the very matter has been inquired into and decided. Only in case the defeated party has been prevented by fraud from presenting his own case can he get relief; otherwise there might be indefinite retrials, United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929; Estes v. Timmons, 199 U. S. 391, 26 Sup. Ct. 85, 50 L. Ed. 241; Greenameyer v. Coate, 212 U. S. 434, 29 Sup. Ct. 345, 53 L. Ed. 587; United States v. Gleeson, 90 Fed. 778, 33 C. C. A. 272 (C. C. A. 2d Cir.). Cases like Johannesson v. United States, 225 U. S. 227, 32 Sup. Ct. 613, 56 L. Ed. 1066, where the first decision was ex parte, are to be distinguished.

This bill' from every aspect appears to be no more than an effort to retry the action of the plaintiffs against Rosenblum without the limitations applicable to such relief. The bill is dismissed with leave to amend within 10 days after the entry of this order.