Opinion
05-25-1886
TROTTER v. HECKSCHER and another.
Charles D. Thompson and Henry C. Pitney, for the motion. R. Wayne Parker, contra.
On motion to strike out petition filed after final decree.
Charles D. Thompson and Henry C. Pitney, for the motion.
R. Wayne Parker, contra.
BIRD, V. C. The complainant gave an agreement to the defendant H., which he assigned to the defendant company, in which it was stipulated that T. should mine and furnish a certain quantity of ores, of a given value, from month to month, and upon failure to do so the defendant should have possession of the mine, and operate it, until T. should show his ability to operate it according to the contract. The defendants, alleging that T. was in default, threatened to take possession. T. filed a bill, and obtained an injunction restraining the defendant from taking possession. Besides asking for an injunction, an accounting was prayed for. The case went to a final hearing on both issues. This court decreed that the preliminary injunction should be made absolute, which was reversed in the court of last resort; so that the defendants were adjudged to have the right to the possession of the mine under the agreement. The defendants took possession. When the decree of the court of errors was made the decree of this court, there was added the phrase "that all equities be reserved, and that the parties have leave to apply for further relief."
The complainant now comes in by petition, and alleges that his disability to operate the mine has been removed, and prays the aid of the court in obtaining the possession under the contract. The only question before me is whether or not the complainant has adopted the proper mode of relief in filing a petition. It is urged that a petition has never been adopted for any such purpose; and that, if the complainant is entitled to any such relief as he seeks by his petition, he must pray for it by bill in the nature of an original or supplemental bill. And the complainant endeavors to protect himself, in his method of pleading, by the limitations with which the final decree above referred to closes. He says all equities are reserved, and either party is given the right to apply for further relief. I cannot conclude that this affords a sufficient warrant for proceeding to establish the rights mentioned in the petition. For a long time I have supposed that all decrees so ending only gave the parties the right to secure in possession the fruits of the decree; as if the decree in this case, showing that T. is entitled to a sum of money from the defendants, had not pointed out the method of recovering the money, or enforcing the decree, then, in such case, the complainant, if the defendants did not pay, could ask by petition for an execution or other process; or, again, supposing that the complainant presented a petition asking for an order that an execution should issue, the defendants might doubtless answer such petition, and show that, since the creation of the liability mentioned in the bill, and found by the decree, by mutual dealings between the parties in respect to the subject-matter of litigation, they have fully discharged such liability. In other words, the reservations for further directions in decrees are only made to enable the court to step in, when called upon, to secure and to make certain the equitable rights of all the parties under that decree. Their respective rights are first establishedunder the decree. Those rights, and those alone, the court enforces, not other alleged rights, although between the same parties fend pertaining to the same subject-matter.
I believe that more reflection upon the long-established practice of this court will lead the very careful and learned counsel to this same conclusion. We proceed to this extent, and no further, in partition and foreclosure cases. Let one example of what is daily done in partition be given. A sale is made, and the interest of a widow is to be secured. It is secured, and after many years she dies, leaving, not the heirs at law of the ancestor, living at the date of the decree, but their descendants, many of whom may be infants, and many comparatively unknown. In such case, the principal money, which had been invested for the benefit of the widow, can be distributed by order, on petition filed in the original cause by any one interested. In such case no new right is established; the only material question is one of identity; for everything else the original decree provided; and I certainly think that the authority (2 Daniell, Ch. Pr. 641) to which I am referred, sustains this view. That authority says:
"Although the general rule of the court is to make complete decree upon all the points connected with the case, it frequently happens that the parties are so circumstanced that a decision upon all the points connected with their interests cannot be pronounced till a future period; thus, for instance, the interest of a fund may belong to a person for life, and, after his death, the fund may be distributable among a particular class of individuals. Now, although the persons who form the class, as well as the tenant for life, must be, and in general are, before the court at the time when the decree is pronounced, the court will not, at that time, take upon itself to declare their interests in the fund, because it is a rule never to declare rights which are not immediately to be acted upon, lest events should occur before the time of acting upon them which may create an alteration in those rights. All that the court, therefore, does under such circumstances is to decree the interest of the fund to be paid to the person entitled to the dividends during his life, and to declare that upon his death the parties interested in the fund are to be at liberty to apply to the court as they may be advised. The same sort of liberty is also given in any other case in which it may seem requisite; and it is to be observed that the effect of it is not to alter the final nature of the decree."
A petition is the method adopted to move the court in all similar cases.
Everything done must be in harmony with the original decree, or at least not inconsistent therewith. And this, I think, is the view of the same learned author (2 Daniell, Ch. Pr. 974) in the next reference made by counsel in behalf of the petitioner. He says:
"It has been before stated that, upon a hearing for further directions, the court will not alter or add to the original decree, nor will it permit facts, to be brought before it upon petition, to come on at the same time with the cause for further directions, in order to ground upon them a direction not warranted by the original decree. The court will, however, at the hearing for further directions, entertain a petition for the purpose of carrying out the directions of the original decree, where circumstances have arisen which have rendered it necessary to obtain auxiliary directions, in order to fulfill theobjects of the decree. Thus, where a decree had directed an account of the personal estate of an intestate received by the administrator, and afterwards an arrangement was entered into between the administrator, who was also the heir at law of the intestate, and the other next of kin, the effect of which was that the rents of certain real estates, which the intestate had contracted to sell in his life-time, but which descended upon the heir at law, in consequence of the contract not having been completed, should be treated as part of the personal estate of the intestate, and accounted for as such in the cause. The master of the rolls, Lord Langdale, made an order upon petition, which came on before him at the same time with the cause for further directions, for a reference to a master to take an account of the rents in question as part of the personal estate, "
Here there was an agreement between the parties after final decree, which the court observed. And this is not dissimilar to the illustration given above as to the rights of the parties to this suit had they had such mutual dealings after the decree as that the money decreed to be due the complainant had been paid. It is due to counsel to give the further citation from the same page:
"So, also, if any new facts have occurred since the original decree which have altered the situation of the parties, or have affected their rights in the subject-matter, and which have not been brought before the court for a supplemental suit, these facts may be stated upon petition, which may be ordered to come on for hearing at the same time with the cause for further direction Thus, if the tenant for life of the fund in court has died since the decree, and the fund has become distributable among those in remainder, a petition may be presented to the court stating the facts of the death of the tenant for life, and praying the court to make distribution among the parties who have become entitled on that event."
It will be seen that the rights here spoken of accrued after final decree, and no supplemental bill had been filed to establish them. The rights of certain persons as a class (remainder-men) had been fixed by the final decree, and nothing more was requisite but to determine their identity, which the court allowed to be done when further directions were moved for.
Taking this most reasonable authority for my guide, I am very far from being able to bring the present case within it. The issue made by the bill was whether or not the defendants were entitled to the possession of the mine. That issue was determined in favor of the defendants; and the decree concludes all questions, both of fact and law, upon that issue up to the time of filing the bill. No question of fact or law can now be considered which made up that issue. If the result of that determination be changed, it must be by some subsequent event. The defendants can only be ordered out, and the complainant let in, by the complainant's showing that his disability, on which the present decree rests, has been removed. This he cannot do without moving in direct antagonism to the present decree, and in no sense in furtherance of its provisions. The procedure is by bill. The name and requisites are pointed out in Daniell, Ch. Pr., in Story, Eq. Pl., and in Barb. Ch. Pr. I can find no authority to the contrary.
I will advise that the petition be dismissed, with costs,