Opinion
05-08-1907
KELSEY et al. v. DILKS et al.
T. J. Middleton & J. J. Crandall, for petitioners. J. Boyd Avis, for defendants.
Petition by Orlando Kelsey and another against Sarah Dilks and others to open a final decree.
See 63 Atl. 1118.
T. J. Middleton & J. J. Crandall, for petitioners. J. Boyd Avis, for defendants.
LEAMING, V. C. I am unable to extend to petitioner the relief which she seeks. The petition is to open a final decree, which was enrolled more than three years ago. Petitions of this nature have in this jurisdiction largely superseded bills of review, and the simplicity of the procedure goes far to recommend it Kerans v. Kerans (N. J. Ch.) 62 Atl. 305; White v. Smith (N. J. Ch.) 65 Atl. 1017. But the principles which control the court in granting or withholding relief appear to remain unchanged. I am unable to find any authority to justify a departure from these well-established principles. It has been uniformly held in England and in the American states that a bill of review for error apparent in the record must be brought within the time allowed for an appeal or writ of error in all cases where the complainant has been under no disability during that period. Story's Eq. Pl. § 410; Daniell's Ch. Pl. & Pr. § 1580, and note; 3 Enc. Pl. & Pr. p. 583; Fletcher's Eq. Pl. & Pr. § 932; 1 Foster's Fed. Pr. § 354. No reason suggests itself for a departure from this rule where the relief is sought by petition, instead of by bill of review.
In the case at bar the relief sought is based wholly upon matters of record. No newly discovered evidence is claimed. It is claimed that the court erred in excluding certain evidence, and that the pleadings do not justify the decree entered. These are matters touching which the law defines the period of three years for review by appeal, and that period has been uniformly adopted as a period beyond which a bill of review cannot be entertained, except for newly discovered evidence, or in cases of disability.
I am obliged to discharge the order to show cause, and dismiss the petition, for the reasons stated.