Opinion
03-17-1812
Franklin v. Wilkinson
Hay, for the appellant, No counsel for the appellee.
Upon an appeal from a rejection, by the Superior Court of Chancery for the Richmond district, of a motion for leave to file a bill of review.
The decree, which the appellant wished to have reviewed, was founded on a bill of injunction to stay proceedings on a judgment at law in his favour against the appellee. The equity relied upon by the complainant in that bill was, that a bond, on which the judgment was obtained, was given for money won at gaming between him and a certain Davis Booker; that before the said bond became due, he became the creditor of the said Booker for a larger sum of money, upon a similar consideration of gaming, and offered to discount the same, which the said Booker agreed to, but said he had not the bond then with him, but would, when he went home, destroy it, or return it, on sight; notwithstanding which, he assigned it to a certain Alexander Hunter, who afterwards assigned it to Owen Franklin, the appellant.
The material allegations of that bill not being admitted by the answer, and no evidence in support of it being filed, the injunction was dissolved on the 17th day of March, 1806. At Rules in the clerk's office, in the same month, the complainant replied generally, and commissions to take depositions were awarded. The bill was not dismissed according to the Act of Assembly; neither does it appear from the record, that cause was shown at the next term against such dismission; but, at Rules, in the month of December, 1806, the cause was set for hearing on motion of the defendant, by his counsel; and, at March Term, 1807, on hearing the bill, answer, exhibits, and examinations of witnesses, the Chancellor adjudged and decreed, that the injunction be perpetual.
Revised Code, 2d vol. p. 29, ch. 29, sec. 3.
The reasons suggested for reviewing this decree were, that " the appellant gave a valuable consideration for the said bond in a wagon and team of horses, estimated at cash prices, and never knew, or heard, until after the assignment of it to him, and delivery of the said wagon and team, that it was suspected to have been given for a gaming consideration; that he would not accept the said bond, until he received an assurance from the said. Wilkinson that it was good for twenty shillings in the pound; that he was prepared to prove these facts, but, being informed by one of his counsel, that he need not take any depositions, and the other, who succeeded to his business, being unable, from a domestic misfortune, to attend to the cause when it was called for trial, the decree perpetuating the injunction was rendered without any opposition, or any statement of facts which might have been made for a continuance. The appellant was advised, that, however new, in strict fact, this case might be, yet, in principle, it falls within the cases allowed to be proper for bills of review; because he charges, 1st. That the indispensable absence of his counsel at the trial was unknown to him, until long after the decree of perpetuation; 2d. That he was prevented, by causes which he had no means of controlling, from taking the necessary testimony; and, 3d. That that testimony, now taken upon notice, and here produced, proves that he was induced to take the said bond upon the assurance of the said Wilkinson himself.
The Chancellor, " being of opinion that there was no error in the decree sought to be reviewed," refused permission to file the bill.
Hay, for the appellant, observed, that he should press the point, that misinstruction of counsel, by which the client was prevented from availing himself of testimony, is a sufficient reason for a bill of review; but felt himself precluded by the cases of Theveat's administrator v. Finch, and Eastham v. Britton, lately decided. He would therefore only contend, that the injunction having been wholly dissolved, and no cause shown, at the next term, against the dismission of the bill, it stood dismissed of course, under the Act of Assembly. The clerk's neglecting to enter such dismission was a breach of his duty, but could not keep the cause on the docket, against the positive words of the law, " that the bill should stand dismissed, of course, with costs." All the subsequent proceedings were, therefore, coram non judice; the suit, in contemplation of law, being at an end.
No counsel for the appellee.
OPINION
Thursday, March 19th, 1812, Judge Roane delivered the following opinion of the Court.
" It appearing that the cause was set for hearing upon the motion of the appellant, by his counsel, the Court is of opinion, that he cannot now be received to insist on the absolute dismissal of the bill of the appellee, under the Act of Assembly; and it not appearing that any sufficient ground is alleged in the bill of review, to entitle the appellant to a reconsideration of the decree perpetuating the injunction, the Court, without deciding on any other point in this cause, is of opinion, that there is no error in the said order rejecting the bill of review: therefore it is decreed and ordered, that the same be affirmed."