72 Ill. App. 200 | Ill. App. Ct. | 1897
delivered the opinion of the Court.
Defendant in error, formerly the husband of plaintiff in error, filed his bill in chancery in the Circuit Court of Cook County, on February 2, 1897, by which he prayed that a decree of divorce entered against him in another cause in said court on May 8,1896, in favor of plaintiff in error, then his wife, might “ be set aside and held to be void.”. The bill was filed as an original bill, no leave to file having been asked or granted.
Three demurrers ■ were sustained to this bill and its successive amendments. On April 21,1897, defendant in error tiled his last amended bill, to which plaintiff in error demurred. The demurrer was overruled. Plaintiff in error elected to stand by demurrer. The bill was taken as confessed, and final decree was entered in accordance with the prayer of the bill. The only question presented upon this writ of error is the sufficiency of the bill upon demurrer.
The substantial allegations of the bill upon which the prayer for relief is based, are as follows :
“ Your orator further represents and charges the fact to be that the said evidence of the said Augusta Willems and the said Alfred Pfiffner, adduced by them upon the said trial, to prove the charges of extreme and repeated cruelty against your orator, and the evidence upon which said decree was found, was- false and perjured evidence, and manufactured by them for the purpose of procuring said decree, and that said decree is founded upon said false and perjured evidence only, but that your orator had, though using due diligence for the preparation of said trial, no means of making said fact known to this honorable court, at said time; but that since said time, and since the term of court at which said decree of divorce was rendered and entered, the means and witnesses by which said testimony can be shown to be false and perjured has come to the knowledge of your orator, and which he is ready and willing to produce upon the trial of this cause.”
The bill also alleges that when said witnesses, Augusta Willems and Alfred Pfiffner, testified upon the former trial, defendant in error also appeared and testified, denying the facts there testified to by said witnesses.
There are but two possible theories, suggested by the allegations, upon which this bill could be founded, viz., to impeach for fraud or to present newly-discovered evidence. For the latter purpose a bill of review, and for the former a bill in the nature of a bill of review, would lie if properly framed.
But if a bill of review be to review a decree on the ground of newly-discovered evidence, that evidence must be specifically set forth; and it must appear therefrom that it is evidence of an important and decisive character, and not merely cumulative. Griggs v. Gear, 3 Gil. 10; Gardner v. Emerson, 40 Ill. 296; Aholtz v. Durfee, 122 Ill. 286.
Hew evidence which simply tends to impeach the character or impair the credibility of witnesses, is not sufficient. •2 Beach. Mod. Eq. Pr. 860.
And leave of court must be obtained to file such bill. 2 Daniell’s Ch. Pl. & Pr. 1577; 2 Beach Mod. Eq. Pr. 866.
And a bill of review upon the ground of newly-discovered evidence can not be filed without leave of court, although fraud in obtaining the decree is also charged, and although leave is not necessary to the review of a decree for fraud alone. Schaefer v. Wunderle, 154 Ill. 577.
If a bill in the nature of a bill of. review be" brought to impeach a decree for fraud, the bill must disclose the circumstances constituting fraud. Cooper’s Eq. Pl. 98; Story’s Eq. Pl. 8th Ed. 428.
Evidence to impeach witnesses examined upon the original hearing, or for the purpose of showing subornation of perjury of such witnesses, is not a sufficient ground for allowing a bill of review. Southard v. Russell, 16 How. (U. S.) 547; Society of S. v. Watson, 77 Fed. Rep. 514.
In the former case the bill charged that one of the solicitors for the complainant in the original suit, obtained by means of bribery, the testimony of a material witness in the cause, and upon the faith of whose evidence the court was •induced to render its decision, and the court say: “ Without expressing any opinion as to the influence this fact, if produced on the original hearing, might have had, it is sufficient to say that it does not come within any rule of chancery proceedings as laying the foundation for, much less as evidence in support of, a bill of review.”
' The bill here presented, when measured by these rules is found insufficient.
Upon the bare allegation that the witnesses named testified falsely the court is invited to again adjudicate upon precisely the same matter presented in the former trial, viz., whether the witnesses in question or the defendant in error told the truth as to the facts. Ho new matter or circumstance of fraud, other than what was there passed upon by the court, is disclosed.
FTor is there any specific showing of what newly-discovered evidence is to be presented.
From, the allegations of the bill the only presumption which can arise is that such evidence would be corroborative of the testimony of defendant in error, i. e., cumulative.
The fact that the bill is filed as an original bill, and without leave, does not operate to supply the elements which are lacking.
The demurrer to the bill should have been sustained.
The decree is reversed and the cause remanded.
