Opinion
(June Term, 1829.)
1. Whether a bill to review a decree of the Court can be filed in a court below, quere.
2. A bill of review for newly discovered testimony cannot be sustained if the discovery was made in time to have been brought forward in either a reamended or supplemental bill.
3. It is error to say that an injunction is of course waived by an amendment. But an injunction is never propped by an amendment.
From WAYNE. This was a bill of review for matter of fact, filed in the court below. The cause sought to be reviewed was decided in this Court, and is reported ante, 273.
Gaston for plaintiff.
Badger and W. H. Haywood for defendant.
The bill charged that since the trial at law, between the same parties, 12 N.C. 346, the plaintiff had discovered that the witness Rebecca Hicks had been bribed by the defendant, and had on that trial (327) been guilty of perjury. The plaintiff then averred that he did not discover the fact above mentioned "until after the filing of the said original bill," and at the return court of said bill, his counsel moved to amend the same so as to charge the said newly discovered matter, when the court decided that an amendment to said bill could not be granted, and the injunction retained. The prayer of the bill was that the injunction might be continued, and for general relief.
On the last circuit, NORWOOD, J., on the motion of the defendant, dismissed the bill for want of jurisdiction, it being a bill to review a decree of the Supreme Court. From this decree the plaintiff appealed.
This is a bill of review for error in fact in a former decree, made in this Court. Waiving every other objection, i think the bill cannot be sustained because it appears in the bill itself that the error, or rather the cause of complaint, was known to the plaintiff at the return term of the original bill, time enough for him to have availed himself of it in that suit; for if the bill did not embrace it, it might have been amended; or if that could not have been done, it might have been brought before the Court by supplemental bill. The necessity, under which the plaintiff says he was placed, of abandoning his injunction if he amended his bill (if in fact it did exist), would have been obviated by a supplemental bill, leaving the injunction to be sustained, if it could, by the original. i fear that the common idea, that (328) an injunction is given up by an amendment, is carried too far; it is going sufficiently far to say that an injunction cannot be sustained or propped by an amendment.
PER CURIAM. Affirmed.
Cited: Am. Bible Soc. v. Hollister, 54 N.C. 14; Farrar v. Staton, 101 N.C. 84.