Boynton v. Chicago Mill & Lumber Company

• Decision Date: 28 October 1907
• Citation: 105 S.W. 77,84 Ark. 203
• Parties: BOYNTON v. CHICAGO MILL & LUMBER COMPANY
• Court: Arkansas Supreme Court

105 S.W. 77

84 Ark. 203

BOYNTON v. CHICAGO MILL & LUMBER COMPANY

Supreme Court of Arkansas

October 28, 1907

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; reversed.

Judgment reversed and cause remanded.

W. J Driver, E. F. Brown and Murphy, Coleman & Lewis, for appellant.

1. The bill as drawn, seeking in one respect to vacate the former decree on account of the manner in which its entry was obtained and the violation of the agreement upon which the cause was heard, and in other respects being a bill of review proper to bring into the record the fact of the reversal of the Federal court decree, is permissible under the practice in this State. 36 Ark. 532.

The identical title in question here has already been passed upon by both Federal and State courts. 120 F. 819; 75 Ark. 415.

2. A purchaser of property pendente lite is conclusively bound by the result of the litigation, as much so as if he had been a party to the action from its beginning. 93 U.S. 163; 57 Ark 229; Id. 97; 50 Ark. 551; 38 Ark. 599; 2 Black on Judg. § 550. Where two suits for the same cause of action progress simultaneously, the judgment first rendered will be an absolute bar in the other suit. 76 Ark. 423. The parties, therefore, were bound by the Federal court decree. If it was res judicata of the title involved in this suit in its original form, it was likewise res judicata as to that title in its final form. That decree not having been reversed until after the rendition of the decree in the present suit, such reversal constitutes a recognized cause for bill of review. 2 Beach, Mod. Eq. 882; 15 F. 196; 38 Wis. 107; Black on Judg. § 333. A decree based in whole or in part on a plea of res judicata Will be reversed on appeal when, pending such appeal, the judgment held to constitute an estoppel is reversed, 129 F. 40. And no technicalities will be permitted to prevent relief in the main suit upon the reversal of the decree in the collateral suit. 130 U.S. 50; 45 F. 741; 141 U.S. 240.

3. A further ground for bill of review, as shown by the proof, was the discovery, after the rendition of the decree, that the decree in Foulkes' Heirs v. Citizens' Bank of Louisiana, which was the foundation of appellee's title, was absolutely void. 75 Ark. 420. That appellee took advantage of a false record, and imposed it upon the court in such manner as to mislead the appellants, affords ground for bill of review, and is sufficient to vacate the decree under the statute. Kirby's Digest, § 4431; 54 Ark. 539.

N. W. Norton, Caruthers Ewing and Lamb & Caraway, for appellee.

1. Since, as shown by the record, the warning order in the Federal case was not published until the 29th day of July, that suit, notwithstanding the complaint was filed on the 1st of July, was not commenced until the first named date. The presumption is that the delay in publication was the fault of the appellants, and that the warning order remained in the office of the clerk. 100 Tenn. 64; 11 Ind. 48; 18 Johns. 14. And appellee, having purchased on July 20th, nine days before the publication, was nora purchaser pendente lite. 1 Am. & Eng. Enc. of L. 750; 108 Ind. 229; 36 Neb. 73; 10 Barb. (N. Y.), 258; 5 Cowen, 158; 18 Johns. 486; 36 Ind. 23; 11 Ind. 48; 43 Miss. 241; 20 Ind. 479; 1 Blackf. 379; 1 Ind. 276; 17 Johns. 63; 23 Mo.App. 376, See also 55 Ark. 633.

2. The assignments in the bill of review are not of a character to be reached by a bill off review, but by appeal only. They contain nothing of error apparent upon the face of the decree, but, at most, only show errors in the decree. For distinction between error apparent upon the face of a decree and error in the decree, see 11 Ark. 114; 24 Ark. 528; 32 Ark. 753; 61 Ala. 354; 50 F. 490; 53 Ala. 229; 50 Ala. 46; 18 Ark. 320; 45 Mich. 394; 29 F. 33; 1 Lea (Tenn.) 313; 82 Tenn. 596; 17 Ves. 177. For what constitutes error upon the face of a decree for which a bill of review will lie, see 70 Ala. 479; 84 Ala. 349; 1 Tenn.Ch. 452; 3 ld. 386; 42 Mich. 304; 44 Miss. 699; 57 Miss. 465; 3 How. (Miss.) 377; 52 Fla. 927; 75 Ill. 255; 13 Ga. 24; 5 Call (Va.) 459; 3 Bush (Ky.) 218; 1 Sandf. Ch. (N. Y.) 120; 16 Fla. 773; 3 Heisk. (Tenn.) 567.

3. Notwithstanding a copy of the deed record, instead of a copy of the court record in the case of Fowlkes' Heirs v. Citizens' Bank of Louisiana, was used upon the trial of the cause at Wynne, if any of the appellants, or their counsel, knew that that decree was entered in vacation, or if, by the exercise of reasonable diligence on their part, they could have known the facts, the bill of review is unavailing. 60 Ark. 55; 59 Ark. 441; 55 Ark. 22; 47 Ark. 17; 26 Ark. 600; 3 Dana (Ky.) 500; 107 Tenn. 300; 83 Va. 141; 79 Ala. 319; 30 N.J.Eq. 559; 11 B. Mon. (Ky.) 220; 6 Rich. Eq. (S. C.) 364; 51 Ala. 301; 77 Va. 600; 5 Mason (U. S.) 303; 32 W.Va. 335; 66 Wis. 85; 55 Ill. 458; 5 Sneed (Tenn.) 100; 64 Ark. 126; 39 F. 680; 21 So. 490. Because the court, upon consideration, gave to the muniments of title introduced in evidence an erroneous construction, is no ground for bill of review. 70 Ala. 479; 79 Ala. 319; 82 Ill. 116; 127 Pa.St. 420; 6 Heisk. (Tenn.) 79; 12 Id. 704; 6 Lea (Tenn.) 69; 76 Va. 609; 76 Va. 160; 75 Va. 76; 19 W.Va. 167; 37 Id. 201; 95 U.S. 434; 19 Fla. 455; 45 N.H. 81; 3 Ia. 574; 24 Tex. 526; 6 Vt. 177. The muniments of title referred to in the record are evidence only, and not a part of the pleadings. The court will not review the evidence. 59 Ark. 441; 106 U.S. 552; 22 Wall. 60; 95 U.S. 99; 13 Pet. 6; 39 Ala. 409; 45 N.H. 81; 3 Ia. 514; 75 Va. 418; 81 Va. 711; 83 Va. 81.

4. Since there was no service upon Haggatt & s in the Federal case until after the sale by them to appellee, and no entry of appearance by them until long after that time, the decree of that court was without effect upon the title of appellee. It was, nevertheless, proper to file the plea of res judicata in the State case, since it could not be foreseen what this court would hold with reference to the date of the commencement of the Federal case. Moreover, the appeal in the Federal case was without supersedeas, which left the decree in the trial court in full force; and, such being the case, it was properly pleaded in bar. Appellants will not be permitted to prosecute the same cause of action in numerous courts to final decision, and then adopt the decree that best subserves their purposes.

5. Appellants ought not to be heard to ask this court to relieve them from difficulties which they have brought upon themselves. Appellee cannot be held responsible for their mistakes, and the court should leave them where it finds them. 3 Munf. (Va), 112; 1 A. K. Marsh. (Ky.), 459; 13 W.Va. 236; 17 Ark. 45. And, under the conditions prevailing in this case, the reversal of the Federal decree affords no ground for bill of review. 53 S.E. 209; 10 Yerg. (Tenn.) 55; 52 S.E. 489.

E. Foster Brown, and Murphy, Coleman & Lewis, for appellants in reply.

1. The indorsement of the warning order upon the complaint constituted the process, and its subsequent publication was merely its service. 31 Ark. 93. Appellee's contention that the earliest date on which the Federal case Can be deemed to have commenced would be July 29th, the date of the first publication, is not borne out by the cases cited, except two, viz., 108 Ind. 229, and 36 Neb. 73, and in each of those cases special statutes authorize that construction. Rev. Stat. Ind. 1881, §§ 314. The Nebraska statute is similar.

2. The bill of review in this case is based on all of the three recognized grounds for that procedure: first, error of law apparent on the face of the record; second, newly discovered evidence; third, matters arising subsequent to the decree sought to be reviewed. It is conceded, under the first head, that it is neither necessary nor proper for the appellate court to consider the evidence; but the court may consider the record, and in this State the record in a chancery case consists, not only of the pleadings, but also of all exhibits thereto. Story's Eq. Pl. 407; 52 F. 7; 60 Ark. 459; 26 Ark. 600.

3. Appellee is the sole beneficiary of the act whereby the lower court was imposed upon and appellant's counsel misled by the introduction of the certified copy of the deed record, and it lies not in its mouth to charge appellants with negligence in failing to examine the deed record and also the chancery record, when the copy introduced was offered by appellee's counsel. Is suspicion a necessary ingredient of diligence and confidence in counsel culpable negligence?

OPINION

HILL, C. J.

The widow and heirs at law of C. O. Boynton, deceased, in July, 1903, filed a petition for leave to file a bill of review, and tendered their bill of review. The chancellor entertained this bill, and granted a temporary injunction upon it.

After answer and development of the evidence, a final hearing was had, and the court dismissed the bill of review for want of equity, and the plaintiffs therein have appealed.

Questions of fact, professional ethics and equity jurisprudence have been presented in the briefs and at the bar. While many of these questions will not be noticed in the opinion, they have not escaped the attention of the court; but only such matters as are controlling will be set out and discussed.

There were three suits, representing practically the same property, and between the same parties or successors or privies of those parties; and for convenience they will be designated "first suit," "second suit," and "present suit," the last named being the bill of review.

THE FIRST SUIT.

On the first day of July, 1899, C. O. Boynton filed his complaint in chancery in the Mississippi Chancery Court against Jas Haggatt and Wm. McMasters and others claiming...