Summary
In Sparks v. Fortescue, 75 N.J. Eq. 586, it was held by the court of errors and appeals, in a case where a petition to open a decree had been filed after the expiration of the period within which an appeal might be taken, that such a petition should not be entertained, and that the only proper proceeding by which such a decree could be challenged was by bill of review.
Summary of this case from Mitchell v. MitchellOpinion
06-28-1907
SPARKS et al. v. FORTESCUE et al.
T. J. Middleton and J. J. Crandall, for petitioner. French & Richards, opposed.
Petition by Thomas W. Fortescue and another against Amelia Sparks and others to open a final decree entered against petitioners. Petition held until decision by the Court of Errors and Appeals of an appeal in a suit by Amelia Sparks and others against Charles S. Ross and others, and order to be made for petitioners if a new trial be granted in that suit.
See 65 Atl. 977.
T. J. Middleton and J. J. Crandall, for petitioner. French & Richards, opposed.
LEAMING, V. C. Defendants seek to open a final decree entered and enrolled nearly three years ago. If this suit stood alone, I should incline to the view that the reasons assigned for permitting the decree to be entered and stand so long unchalleged are insufficient to warrant this court in ordering the enrollment opened. But it appears that the bill was filed to quiet title to certain real estate, and the basis of complainants' claim was that the children of one Edmund B. Ross were not born in lawful wedlock. If born in lawful wedlock, they became the owners of the property in question; if not, complainant was entitled to a decree. But one of the several children of Edmund B. Ross was made a defendant in this suit; counsel for complainants not being aware, at that time, of the existence of the others. No testimony was offered on behalf of defendant, although he was represented by counsel and an answer was filed in his behalf. Subsequently a similar bill to quiet title was filed by the same complainants against the remaining children of Edmund B. Ross, and the same issues were raised. The second suit was defended by other counsel, and defendant in the first suit alleges that he believed that his interests would be fully protected in the second suit. In the second suit a feigned issue was awarded, and that issue was tried at the Supreme Court circuit, and a verdict was instructed in favor of complainants. Subsequently this court ordered that verdict set aside because of insufficient evidence to warrant the peremptory instruction given. From that order of this court an appeal is now pending in the Court of Errors and Appeals. The two suits are identical. If the children of Edmund B. Ross were born in lawful wedlock—thatis to say, if his marriage to the mother of these children was a lawful marriage—then the title to the land in controversy is in them; otherwise, it is in complainants. It would, indeed, be an anomaly if the two suits should be ultimately determined differently. As the Court of Errors and Appeals is yet to determine whether a new trial shall be had in the second suit, and as the first suit was practically undefended, I entertain the view that the equitable course is to open the decree pursuant to the prayer of the petition, on condition that the Court of Errors and Appeals grants a new trial in the second suit, and on the further condition that defendants shall consent, in such event, to the consolidation of the two suits, should complainants desire such consolidation.
I will therefore hold the present petition until the decision referred to is rendered by the appellate court, and then advise an order in accordance with the views herein expressed. Such costs as complainants were compelled to expend in taking the depositions before the master and in entering the decree should be paid by petitioner in the event of the decree being opened.