10 D.C. 283 (D.C.D.C. 1879), 5323, Davis v. Speiden

Docket NºEQUITY.— 5323.
Citation10 D.C. 283
Opinion JudgeMr. Justice MACARTHUR
Party NameCHARLES T. DAVIS v. EDGAR SPEIDEN.
AttorneyR. K. Elliott and Edwards & Barnard , for complainants. William F. Mattingly , for defendant.
CourtSupreme Court of District of Columbia

Page 283

10 D.C. 283 (D.C.D.C. 1879)

CHARLES T. DAVIS

v.

EDGAR SPEIDEN.

EQUITY.— No. 5323.

Supreme Court, District of Columbia.

September Term, 1879

I. It is now settled in our practice that the pleadings, orders, and proceedings in a cause, as well as the final decree, constitute that portion of the record for the purpose of examining all errors of law in a bill of review.

II. An order overruling a demurrer to a bill of complaint, and giving leave to the defendant to answer, is not appealable to the general term; but if, in such case, there is an appeal bond approved by one of the justices, it will operate as a stay of proceedings at the special term; and if any decree affecting the rights of the parties is taken at such special term during the appeal, it will be error in a bill of review.

III. Unless the averments-in a bill of complaint are precise and definite, no decree can be taken without proof, although a decree pro confesso has been previously obtained; and such error may be assigned in a bill of review.

IV. A party must, in general, perform a decree before filing a bill of review. Where the decree is for the payment of money, he must either aver performance or set up his inability arising from insolvency.

STATEMENT OF THE CASE.

This is an appeal from a decree overruling a demurrer to a bill of review. The bill in the original cause was filed in April, 1876, by Edgar Speiden against Charles T. Davis, who is the complainant herein. It alleges that the said Speiden purchased from Davis, May 17, 1875, twenty thousand dollars of District of Columbia bonds, commonly known as 3.65 bonds of said District, for which he paid him $1,100 in cash and gave his note for $14,000, payable in thirty days, pledging said bonds as collateral security for the payment of the note; that on the 3d of July following Speiden made another purchase of 3.65 bonds for the sum of $30,000, at the rate of 74 3/4 per cent., for which he gave his note for $21,000, payable in sixty days— the bonds being pledged as collateral security for the payment of said note also. He gave his personal note for $1,425, payable at the same time. The notes were renewed at maturity, upon payment of the interest due thereon; in consideration of which Davis agreed to carry the bonds, and to hold them as collateral to the notes. Another renewal of the same kind was made in October, 1875, and finally, on the 7th day of December, 1875, the market value of the bonds having depreciated to 65 per cent., Speiden paid the interest due on the note and margin on the bonds, and gave Davis a new note for $30,000, payable ninety days after date, with interest at 8 per cent., and a personal note for $2,500, and Davis agreeing to carry the bonds as he had done before; that on March 14, 1876, Congress passed an act providing for the payment of the semi-annual interest on the 3.65 bonds, whereupon they appreciated from 74 1/2 to 75 per cent., and Davis then claimed that he had sold the bonds at 66 per cent. on their face value; that although requested to render a statement of the said sale, Davis has never done so and retains the notes; and that he has brought suit against Speiden on the $2,500 note, claiming a balance due thereon, on the law side of this court. The bill also alleges the belief of the complainant therein that Davis never had the bonds, and that he had perpetrated a fraud upon him.

The prayer is that Davis surrender the notes, and pay to Speiden the several sums of money which he has paid for interest and margins as aforesaid; that Davis may account for the market value of the bonds, and may be enjoined from prosecuting the suit at law.

Upon this bill an injunction issued according to the prayer thereof, and Davis having filed a demurrer, the same was overruled on the 8th September, 1876, with leave to answer the bill within ten days. An appeal from this order to the general term was perfected by filing an appeal bond on the 21st day of September, and on the 23d of the same month, notwithstanding such appeal, the complainant therein obtained a decree pro confesso for want of an answer, and on the 3d day of November following a final decree was entered at the special term upon the bill. There was no reference to an auditor and no proof. It was decreed that the suit at law be enjoined, and that Davis pay the said Speiden the sum of $6,601, with interest until paid, and that he surrender the notes to be canceled— the amount decreed to be paid corresponding in the aggregate with the several payments alleged on the face of the bill to have been paid by the said Speiden for interest and margins, as already stated.

The general term decided, December 18, 1876, that an appeal would not lie from the order overruling the demurrer to the original bill, and the same was remanded to the special term for further proceedings.

Various other steps were taken in the cause, with a view to setting aside the decrees pro confesso and the final one, which having been denied, Davis filed the bill of review in this cause, setting out the whole record and appending a copy of his proposed answer to the bill in the original suit.

The errors of law assigned upon this record are:

1st. The special term had no jurisdiction to proceed with the cause pending the first appeal. 2d. The decree of November was unauthorized, without proofs. 3d. The cause having been remanded for further proceedings, the special term should have taken jurisdiction of the case as it was at the date of the appeal. 4th. The appellate court must determine its own jurisdiction, and pending such determination it is irregular for the special term to proceed with the cause, and such proceedings should be set aside on motion. Davis claims an irreparable injury by reason of the said erroneous proceedings, and that he is not indebted to the said Speiden in any sum whatever.

To this bill of review Speiden demurs, claiming (1) that there is no error of law on the record; (2) that Davis has not performed the decree sought to be reviewed; (3) the bill of review not filed in time; (4) too late to review a decree after an appeal from it to the general term and a dismissal of the appeal there.

After a hearing, the court in special term overruled the demurrer, sustained the prayer of the bill, set aside the decrees in original suit subsequent to appeal therefrom, and gave Davis leave to answer in said suit instanter .

From this decree Speiden appeals to this court.

R. K. Elliott and Edwards & Barnard , for complainants.

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