Opinion
No. 31481.
December 10, 1934.
1. EQUITY.
Bill to review decree dismissing attachment, setting out circumstances of automobile collision on which original attachment suit was based and showing defendant's negligence therein, held demurrable for failure to allege material error of law apparent on face of decree and pleading, and newly discovered material matter which could not be produced by reasonable diligence before original decree was entered.
2. EQUITY.
Bill of review filed in pursuance of petition should be merely enlargement of petition, must allege newly discovered evidence and manner in which it affects decree, in allegations which are definite and certain; and such bills are not favored.
3. CONTINUANCE.
In attachment suit, letter to clerk of court stating that plaintiff was ill in hospital, and that case could not be tried at certain term of court, did not constitute application for continuance which court had discretion to grant.
4. CONTINUANCE.
Continuance is matter within discretion of chancery court.
APPEAL from the Chancery Court of Lamar County.
Quitman Ross, of Laurel, for appellant.
A bill of review is not the proper subject of a demurrer, and its sufficiency cannot be tested by demurrer, that preliminary having been disposed of when leave to file the bill of review was granted.
Griffith, Chancery Practice, sections 639 and 641; Armistead v. Barber, 82 Miss. 788, 35 So. 199.
The appellee insists that nothing not heretofore submitted to the court below could be submitted under the bill of review, and that the appellant was not diligent in that he entered no appearance at the return term. In other words, he insists that the appellant should have appeared in court to try his case regardless of his physical condition or of any valid reason for his absence.
Ordinarily that would have been true, but the appellant offered evidence sworn to by his attending physician that he was absolutely unable to be there.
Section 378, Code of 1930, makes no provision whatever for a demurrer to a bill of review, but refers exclusively to original bills.
Rawls Hathorn, of Columbia, for appellee.
Section 639, Griffith's Chancery Practice, does not deal with demurrers to bills of review; Section 640, does deal with the subject, and appellant evidently meant to cite section 640. Judge Griffith is not authority for appellant.
The demurrer was timely and properly filed.
21 C.J., p. 761, par. 904; Armistead v. Barber, 82 Miss. 788.
The filing of a bill of review is permissible on two base grounds. First, material error of law apparent on the face of the decree and the pleadings and proceedings on which it is based, exclusive of the evidence. Second, upon some newly discovered matter which was not and could not be found and produced by the use of reasonable diligence before the decree in question was entered.
Griffith's Chancery Practice, p. 733, par. 635; 21 C.J., par. 899, p. 744, par. 897, p. 740, pars. 900, 901 and 902, p. 746, et seq.; 10 R.C.L., pars. 356 to 364, pp. 567 to 576; Iler v. Routh's Heirs, 3 How. 292.
Appellant, neither in his bill for review nor in his brief, made any contention of error in the decree or the pleadings and proceedings. Appellant does not set out any newly discovered evidence in his tendered bill of review.
Appellant's contention is that he was confined in the hospital and unable to attend court, and that his attorney wrote the clerk advising that his client was sick and unable to attend court.
There is nothing to show that the information contained in the letter to the clerk was ever brought to the attention of the court or appellee, and even if it had been, with nothing further and no application in proper form for a continuance, the court would, of necessity, have taken the same action that was taken. Counsel for appellant had no right to rely upon a letter written to the clerk and placed in the open mails.
As a general rule a bill of review will not lie on the ground of counsel's absence, negligence, mistakes, or unfaithfulness. Counsel's ignorance of the client's address, so that he could not communicate with him, is not a sufficient ground.
21 C.J., p. 745, par. 899; Foy v. Foy, 25 Miss. 207; 3 Daniel, Ch. Prac. 1727; Whitting v. Bank of U.S., 13 Peters 13, 10 L.Ed. 33.
An appeal is prosecuted here from a decree sustaining a demurrer and dismissing a bill of review filed in the chancery court by the appellant, Philip Imbragulio. On February 10, 1933, appellant made an affidavit in attachment before the chancery clerk presumably under section 173, Code 1930. A writ was issued and levied on an automobile belonging to the nonresident appellee, Hebert, returnable to the regular term of the chancery court on June 19, 1933.
The action was an ex delicto claim based upon alleged damages to an automobile belonging to Imbragulio caused by a collision on the public highway.
At that term of court no pleading, of any kind, was filed by the appellant, and neither he nor his solicitor of record appeared, or took steps in the suit. On June 26th, upon motion of the appellee, Hebert, the court dismissed the attachment suit and awarded damages for the wrongful suing out of the same. No motion for a new trial was filed by Imbragulio during the term. After the adjournment of that term, in December, 1933, the appellant presented a petition to the chancery court, ex parte, without notice to the appellee or his solicitor, and upon said petition obtained leave to file a bill of review on the decree dismissing the attachment suit. The so-called bill of review was filed on January 15, 1934. Upon process, Hebert appeared and filed a demurrer to the bill. The effect of this demurrer was that the so-called bill of review contained none of the essentials of such a bill, and was, in fact, an original bill. This demurrer was sustained.
In brief, the bill set out the circumstances of an automobile collision upon which the original attachment suit was based, and it was made to appear that Hebert was guilty of negligence therein. The bill alleged that, prior to the term of court at which the attachment suit was dismissed, the solicitor for Imbragulio had written a letter to the clerk of the court stating that Imbragulio was quite ill in the hospital at Hattiesburg, and that the case could not be tried at that term of court. It is not shown that the solicitor attended that term of court, or communicated, in any way, with Hebert's solicitors, nor is it shown that the clerk of the court brought this letter to the attention of the court. No diligence, whatever, is alleged in the bill, and it is not shown that any newly discovered evidence had been found since the entry of the decree dismissing the attachment suit. No error of law is pointed out on the face of the attachment suit.
A bill filed in pursuance of a petition is and should be merely an enlargement of the petition. Cole v. Miller, 32 Miss. 89. It must allege that there is newly discovered evidence, and must set up material facts constituting same, and the manner exactly in which it affects the former decree. The allegations must be definite and certain, and not matters of conjecture. Griffith's Chancery Practice, section 639, and such bills are not favored. Id., section 640.
The letter written by the solicitor of Imbragulio was lacking in many of the essentials of an application for a continuance, and it is unnecessary to cite authority that a continuance is a matter within the discretion of the chancery court. Imbragulio's presence at the trial in June may or may not have been necessary. If, on presentation of a petition with a copy of the bill attached, which is the proper practice, the appellee had been summoned to that hearing, it would have been the proper procedure for a demurrer, if thought advisable, to have been filed as to the sufficiency of the bill. In the case at bar, there was no process waived as to the filing of the bill, which was granted ex parte, and the demurrer was entirely proper, as the bill is wanting in two essentials: First, that there was material error of law apparent on the face of the decree and the pleadings on which it is based; and, second, in that there was some newly discovered material matter which was not and could not be found and produced by reasonable diligence before the original decree was entered. Griffith's Chancery Practice, sec. 635; Iler v. Routh's Heirs, 3 How. (Miss.) 292, and Foy v. Foy, 25 Miss. 207. In the case of Armistead v. Barber, 82 Miss. 788, 35 So. 199, the demurrer was favorably considered, but the case was reversed for want of the necessary parties, a defect in form and not in substance. It is true that the appellant asked leave to amend his bill when it was dismissed, but, being a bill of review, he should have presented to the court matters of substance which would have entitled him to a review. He presented nothing.
The demurrer was properly sustained and the bill properly dismissed.
Affirmed.