47 Miss. 682 | Miss. | 1873
On the 23d day of February, A. D. 1867, a decree was rendered by a special court of equity in favor of David M. Fulton against J. F. Woodman, for the sum of $35,507.67, and costs of suit.
At the January term, 1871, the said Woodman filed a bill of review in the chancery court of Madison county to procure the reversal of said decree.
And to this bill of review, the defendant, D. W. Fulton, filed a demurrer, assigning the following causes :
1. The alleged errors assigned in said bill, are on the report of the commissioner appointed to take and state an account, and no reason or excuse is given why objections and exceptions were not in due time taken to said report.
2. No error is assigned upon any order or decree of the court; nor is it suggested that the court of equity erred in confirming said report.
3. The case sought to be reviewed is not in this court, and this court has no jurisdiction of said cause, or to entertain this bill.
5. The act of the legislature authorizing a bill of review, is unconstitutional and void, and it does not in terms authorize this bill.
The demurrer was sustained and the bill dismissed, and hence the case comes here by appeal.
In the 16th article of the Revised Code of 1857, p. 401, it is provided that bills of review in chancery shall be filed within two years next after the date of the final decree in the cause, and not after; saving to jjersons under any disability as hereinbefore mentioned, the like period of two years after the removal of such disability. Under this law, the right to file a bill of review was barred by the statute of limitations. And after the bar of the statute has attached, is it in the power of the legislature to remove the bar by extending the period within which a suit or action may be brought ?
The act of July 21st, 1870, authorizes the party or parties against whom a final decree was rendered in a special court of equity, to file a bill of review within ninety days after the passage of the act, and have the causes re-heard in the same manner and under the same rules and regulations governing bills of review in cases regularly commenced and decided in courts of equity in this state. Pamphlet Acts, 106.
In the case of Davis v. Minor, 1 How. 183, it was decided that the bar created by the statute of limitations, where it attaches, is as effectual as payment or any other defense, and, when once vested, cannot be taken away by legislative action without the defendant’s consent.
It appears that Woodman appealed from this decree, to the high court of errors and appeals, and the records of that court show the appeal was dismissed.
After the bar of the statute of limitations had attached, and after an appeal had been taken to the high
We therefore think the court below did not err in sustaining the demurrer and dismissing the appellant’s bill of review.
The decree must be affirmed.
