The Bank of the United States, Appellants v. Jacob White, David Cummins, and Robert Bennefil

• Decision Date: 01 January 1834
• Parties: THE BANK OF THE UNITED STATES, APPELLANTS v. JACOB WHITE, DAVID CUMMINS, AND ROBERT BENNEFIL
• Court: U.S. Supreme Court

33 U.S. 262

8 Pet. 262

8 L.Ed. 938

THE BANK OF THE UNITED STATES, APPELLANTS v. JACOB WHITE, DAVID CUMMINS, AND ROBERT BENNEFIL.

January Term, 1834

APPEAL from the circuit court of the United States for the district of Ohio.

The case, as stated by Mr Justice STORY, was as follows.

The Bank of the United States, in 1826, brought a bill in equity against the appellees, and Hugh Glenn, James Glenn and Thomas Graham. The object of the bill was to set aside certain conveyances of real estate, made by the appellee, White, to the other appellees, Cummins and Bennefil, upon which estates the bank, as judgment creditors of White, the Glenns and Graham, had levied executions to satisfy those judgments. The bill charged the conveyances to be fraudulent.

The appellees appealed, and filed a demurrer to the bill; and at the July term of the court in 1828, the demurrer was overruled, and the cause remanded to the rules, and a rule taken for an answer in sixty days. At the September rules 1828 an entry 'decree pro confesso' was minuted in the rule book; and thereupon the cause was continued from term to term until July 1830, when a final decree was entered, as follows: 'it appearing to the court, that the defendants in this cause are in default for answer, it is ordered, adjudged and decreed, that the matters set forth in the complainants' bill, be taken as confessed and true; and the court therefore order and decree, that the several deeds set forth in the complainants' bill, as having been made by the said Jacob White, without any valuable consideration, and with a view to delay and hinder the complainants in the collection of their debts set forth in the bill, are void; and that the same are therefore fraudulent as to the complainants. It is therefore ordered, adjudged and decreed, that the several tracts of land, in said several deeds described, are liable to be sold for the satisfaction of the said several judgments, held by the said complainants against said Jacob White and others, mentioned and set forth in the complainants' bill. And it is further ordered, that so far as said deeds may interfere with the complainants in their collection of their said judgments, the same are hereby declared void; and the said defendants are perpetually enjoined from setting up or asserting title under the said deeds, as against the complainants, or any persons who may claim as purchasers at sales made on execution under any or either of the said judgments, held by the complainants; and it is further ordered, that the said complainants recover of the said defendants their costs in this behalf expended.'

In July 1830, the appellees filed the present bill of review, for the purpose of reversing the foregoing decree; and the charging in the bill is, that the decree was irregularly and illegally made and entered as a final decree; when, according to law, and the rules of the circuit court, the same ought only to have been entered as an interlocutory decree, and a copy thereof served upon the appellees before the same became final. The appellants filed an answer, admitting the proceedings and decree to have been as stated in the bill of review. But the answer avers, that at the time when the demurrer was overruled, the solicitor for the appellees gave the court and the solicitors for the appellants notice, that the appellees, then defendants in the cause, do not wish to file any answer to the said bill. And the answer expressly denies, that any error or irregularity exists in said decree; or that the same was erroneously entered; or that the decree ought to have been interlocutory: and it does not admit that a copy ought to have been served upon the appellees previous to rendering a final decision thereon, after they had appeared and demurred to the said bill.

The cause was set down for a hearing upon the bill of review and answer; and at the hearing, the circuit court reversed the original decree, for the reasons stated in the bill of review.

The Bank of the United States appealed from this decree of reversal.

A printed argument was delivered to the court, in which Mr Fox and Mr Caswell, for the appellants, contended, that the decree, reversing the original decree, was erroneous.

1st. Because all the parties interested in the original decree were not parties to the bill of review.

2d. Because after defendants in a chancery cause have appeared and demurred to a bill, it is not necessary to serve them with copies of any decree made in the subsequent progress of the cause.

3d. That even admitting the necessity of the service of such a decree in ordinary cases; in the present case, the pleadings show a waiver of a compliance with the rule, the answer not being replied to.

The appellants contend that a decree on a bill of review is one from which an appeal can be taken. 10 Wheaton 146, 6 Cond. Rep. 44. It is a final determination of the suit; and in case the party plaintiff succeeds, he gains the right of litigating again a matter once decided. It is precisely like a writ of error in its effects. The decree made on a bill of review, is the subject of a new bill of review. Cooper's Equity 92; 2 Cha. Prac. 633; Mitford's Pleading 79, 80; 1 Vernon 417.

And it makes no difference in this respect whether the original decree was reversed or sustained, on the proceeding to review.

If a decree reversing a former decree is the subject matter for a new bill of review, it follows as a matter of course, that the decree is final; because none but a final decree can be either reviewed or reversed: and if final, then it is such a decree as can be appealed from.

In support of the first error assigned, the appellants consider the law as settled, that in bills of review, as in cases of writs of error, all parties to the original suit must be made parties, either plaintiffs or defendants, to the proceeding brought to be reviewed. Cooper's Eq. 95; Beames's Pleas in Eq. 314. In the present case neither the Glenns nor Graham were made parties to the bill of review.

In support of the second error assigned, it is contended, that after a defendant in chancery has once appeared and demurred to a bill, it is not necessary to give him any further notice of the proceedings in the cause. A decree nisi need in no case be served upon such a party. The omission to file an answer is an admission, on his part, that the case is correctly stated in the bill, and that he has no valid defence to offer.

The twentieth rule established by the supreme court, for the practice of the courts of the United States, does not require the service of a copy of the decree. On the contrary, it is expressly provided, that if the defendant fail to answer the plaintiff's bill within two months (after the demurrer be overruled), the bill 'may be taken as confessed, and the matter thereof be decreed accordingly.' The clause attached to the sixth rule in these words, 'which decree shall be absolute, unless cause be shown at the term next succeeding that to which the process shall be returned executed,' is altogether omitted in the twentieth rule.

By the ordinary rules of practice in courts of chancery, no decree could be taken pro confesso, until the defendant had entered an appearance. The plaintiff had no remedy against the obstinacy of the defendant, in refusing to enter his appearance. To remedy this defect in the administration of justice, the statute of 5 Geo. 2, ch. 25, was passed, by which the courts are authorized to enter an appearance for the defendant, and the cause is then prosecuted in the same manner as though the defendant had voluntarily appeared.

We suppose the object of the sixth rule, is to enable the complainant to proceed without an actual appearance. The provisions of the sixth and seventh rules embrace substantially the provisions of the British statute, and the same construction applied to the estate, must be applied to the rules. 1 Har. Cha. Prac. 203; 1 Newland's Cha. Prac. 97.

If the court had intended to require the service of a copy of the decree, pro confesso, in cases where an appearance had been entered, and demurrer filed and overruled, language would have been used leaving no doubt of such intention. Such a requisition being contrary to the settled practice of the English courts, would not have been permitted to rest on mere inference or implication.

In support of the...