Whelan v. Cook

Miller, J., 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 ⁸ qualification of equal importance with the rule itself, that the matter must not only be new, but such as the party by the use of reasonable diligence could not have known for if there be any laches or negligence it destroys the title to relief. The courts have uniformly and rigorously adhered to this qualification, deeming it better that individual injury should be inflicted in particular cases, than that rules established to prevent general mischief, should be broken down.

Young v. Keighly, 16 Ves. 348; Wiser v. Blachly, 2 John. Ch. 488; Story’s Eq. PI. sec. 414. These settled rules of equity practice must govern this case, and we now proceed to consider briefly the grounds, alleged in the petition and presented in argument, upon which it is supposed a bill of review will lie to vacate the order dismissing this bill. 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 ⁹ in this State, such a motion could be made or such rule laid, after the cause is at issxxe and a commission issued, we need not determine, because this case must be decided by the rules of court appearing in the record. Rule 25, is “ that at any stage of the cause where further proceedings are proper to be had on the part of the complainant, the defendant may obtain a rule for such further proceedings,” etc., and Rule 4, provides that commissions for taking testimony shall be returned on or before the first day of the first term after their date, if issued within thirty days before such first term, if not, then to the first day of the second term, “ and if not so returned a rule or order may be obtained for the return thereof at such day as shall be limited, or on application such commission shall be considered void and a new commission shall issue, or other order as may appear proper, provided that when such commission shall not be returned'it shall prima facie be considered *the fault of the party who had the carrying of such commission.” This commission had been outstanding nearly five years before the rule was laid. It is true the parties agreed it should be issued to a named commissioner, who should at a particular place take such proof as might be adduced on either side, and it is also true that on the 6th of May, 1863, the parties agreed that certain interrogatories then filed on the part of the complainants should be used in the examination of witnesses under the commission to be that day executed.

But these agreements did not release the complainants from the position of parties having “