Buffington v. Harvey

• Decision Date: 01 October 1877
• Citation: 24 L.Ed. 381,95 U.S. 99
• Parties: BUFFINGTON v. HARVEY
• Court: U.S. Supreme Court

95 U.S. 99

24 L.Ed. 381

BUFFINGTON v. HARVEY.

October Term, 1877

APPEAL from the Circuit Court of the United States for the Southern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Thomas J. Henderson for the appellant.

No counsel appeared for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is an appeal from a decree sustaining a demurrer to a bill of review, and dismissing the bill, the effect of which is to leave the decree in the original cause in full force and effect. The only questions open for examination on this appeal are such as were open on the bill of review, and these, as shown in Whiting et al. v. The Bank of United States, 13 Pet. 6, and Putnam v. Day, 22 Wall. 60, were only such as arose upon the pleadings, proceedings, and decree, without reference to the evidence in the cause. The decision of the court upon the issues of fact, so far as they depend upon the proofs, are conclusive on a bill of review. It was error, therefore, to insert in the bill, as was done in this case, the evidence taken in the original cause. Had this error been specially assigned, the demurrer might have been sustained on that ground alone, or the evidence might have been stricken out of the bill as surplusage, on motion. But as the demurrer was a general one, if the bill of review showed any substantial error in the record the demurrer should have been overruled, and the original decree should have been opened or reversed. 2 Smith, Ch. Pr. 56, 63. A general demurrer must be overruled if the pleading demurred to contain any good ground to support it. It was the duty of the court below, therefore, to inquire whether the record, exclusive of the evidence, contained any substantial error pointed out by the bill of review. 2 Smith, Ch. Pr. 57. The result to which the court came was that no such error existed; and therefore the demurrer was sustained, and the bill of review was dismissed.

The errors assigned to this decree are five: 1st, Because the court sustained the demurrer; 2d, because it entered a decree for the complainant; 3d, because it overruled a petition for a rehearing; 4th, because it found the issues for the complainant; 5th, because it overruled a motion to dissolve the injunction. The three last assignments are totally inadmissible. The granting of a rehearing is always in the sound discretion of the court, and, therefore, granting or refusing it furnishes no ground of appeal. Steines v. Franklin County, 14 Wall. 15. The granting or dissolution of a temporary injunction stands on the same footing. The granting of a permanent injunction is part of the final decree, and abides the fate of the decree itself. And as to the finding of the issues for the complainant, that, as we have seen, is not a matter that can be examined on a bill of review. The only assignm nt, therefore, which we can recognize, is the general one, that the court erred in sustaining the demurrer to the bill of review, and entering a decree for the complainant.

We must look, then, at the bill of review, and see whether it points out and demonstrates any substantial error in the pleadings, proceedings, or decree, supposing the issues of fact to have been properly passed upon by the court. In order to understand the force and effect of this bill, however, it will be necessary to state the nature and objects of the original suit.

The bill in the original cause was filed on the 20th of March, 1872, by Harvey, the present appellee, as assignee in bankruptcy of one Isaac Fitzgerrel, against Titus Buffington, the appellant, to set aside a conveyance of real and personal property made by the bankrupt to Buffington on the thirtieth day of December, 1867. It is alleged that this conveyance was made by the bankrupt in contemplation of insolvency, to put his property out of his hands, so as to hinder and delay his creditors, and to defeat the operation of the bankrupt law; that it was a pretended sale, without any real consideration, though Buffington's notes were given therefor at long dates; and various circumstances with regard to the bankrupt remaining in possession of the property and using and disposing of it as his own, are detailed as evidence of the fraudulent intent.

To this bill the defendant filed an answer, in which he insisted on the bona fides of the transaction, endeavored to explain the circumstances charged in the bill as evidence of fraud, and alleged that, on a petition to have Fitzgerrel declared a bankrupt, an injunction had been issued against the defendant in April, 1868, prohibiting him from selling or disposing of the goods, but was afterwards dissolved, and he supposed the question of his title was settled. This answer being excepted to, a second and third answer were filed by the defendant, going more into...