29 Md. 1 | Md. | 1868
delivered the opinion of the court :
A creditors’ bill was filed May 17th, 1859, against the administratrix and heirs-at-law of John Cook, deceased, for a sale Of his real estate to pay debts. The defendants answered February 22d, i860, denying the alleged indebtedness and pleading limitations and usury to the claims of the complainants exhibited with their bill. A commission to take testimony was issued June 23rd, i860, and on the 23rd of *March, 1865, at the regular March Term, the defendants obtained rules upon the complainants for “ further proceedings and security for costs ” under which the bill was dismissed on the 5'th of July following. On the 15th of February, 1866, after enrolment of the order of dismissal, a petition was filed by the appellants, asking leave to file a bill of review, and from the order dismissing this petition the present appeal is taken. The rules of the court below are made part of the record. The appellants have considered their remedy to be by a bill of review and the case must be disposed of in view of the rules of equity practice applicable to such bills.
A bill of review can be brought only for error in law appearing on the face of the proceedings or upon the discovery of new matter pressing upon the decree subsequent to the period when it could have been used : and in such case there is a
1st. The allegation in the petition that no copy of the rule “ further proceedings ” was ever served on the petitioners or their solicitor, and that the first notice they had of the dismissal of their bill was in January, 1866, is fully answered by the 10th rule of the court below, which dispenses with service of a copy of a rule like this and requires the solicitor to take notice of it.
*2nd. It is alleged in the petition that two of the complainants died prior to the 23rd of March, 1863, and it is insisted the defendants should have taken steps to make their personal representatives parties to the cause before laying the rule further proceedings. This objection presents neither error in law nor new matter. There is nothing on the face of the proceedings showing these parties were dead at the time the rule was laid and the order of dismissal passed, nor did the cause abate by their deaths. Code, Art. 16, sec. 1. It was no more incumbent on the defendants than upon the surviving complainants, to suggest their deaths and take the necessary steps to bring in the personal representatives. If the complainants had done this in answer to the rule, “ further proceedings,” the bill could not have been dismissed.
3rd. Another objection is that the rule “ further proceedings ” could not be laid after the cause was at issue, and whilst there was an outstanding commission. This rule has been adopted in our chancery practice as a substitute for the English practice of motions to dismiss for want of prosecution. Whether under the ordinary chancery practice in England or
4th. 'It is further alleged “ that the proof taken under the commission was in the charge and custody of the commis
5th. Another reason has been presented in argument, viz.: that one or more of the complainants being residents of Virginia, a State at that time engaged in war with the United States, were alien enemies, and the right to prosecute their claims was thereby suspended, and it was error therefore to dismiss their bill. There is nothing in the record to show that more than one of the complainants was ever a citizen of Virginia, and he came in by petition and exhibited his claim on the 6th of May, 1863. In his petition he states he was “ of the State of Virginia,” from which we infer he was at that time a citizen of that State, and residing therein. We assume the war existed as alleged, and the Supreme Court in the Prise Cases, 2 Black, 635, and in subsequent decisions, have unquestionably so determined ; but the same authorities have also decided that this war commenced in 1861, and continued till long after May, 1863, when this petition was filed. Hutchinson v. Brock, it Mass. 119, cited by the appellants’ counsel in support of their position, was a suit involving title to land instituted before, and the plea of alien enemy interposed after the commencement of
The bill was, therefore, properly dismissed under the rule “ further proceedings,” and it is unnecessary for us to examine whether the rule “ security for costs ” was correctly laid or not. We have found no sufficient grounds alleged in the petition upon which a bill of review can be sustained, and have, therefore, had no occasion to refer to the answer to the petition, and do not mean to decide the question of practice whether on such an application the answer can be considered.'
Order affirmed.