Cowen v. Adams

• Decision Date: 08 February 1897
• Docket Number: 367.
• Citation: 80 F. 448
• Parties: COWEN et al v. ADAMS et al.
• Court: U.S. Court of Appeals — Sixth Circuit

80 F. 448

COWEN et al v. ADAMS et al.

No. 367.

United States Court of Appeals, Sixth Circuit.

February 8, 1897

Before LURTON, Circuit Judge, SEVERENS, District Judge, and HAMMOND J.

SEVERENS District Judge.

The defendants, Thomas M. Adams and E. C. Means, as administrators with the will annexed, have filed a petition for a rehearing of this case, upon the following grounds 'First. Because the settlement of October 16, 1890, is decreed to be set aside upon grounds not alleged in the bill and which were therefore not discussed by counsel for the petitioners at the argument.'

'Second. Because, upon the question whether the notes of William Means are forgiven by the fifth clause of the will, there is a clear distinction, overlooked by the court, between the note of November 22, 1888, for $45,000, and the other notes covered by the settlement.

'Third. The petitioners believe, and are so advised by their counsel that a consideration of arguments which, for the reason aforesaid, were not presented at the hearing, will lead this honorable court to a decision in their favor.'

In the statement of the grounds and arguments appended to the petition, and in support thereof, counsel, in addition to the suggestion of reasons relevant to the particular ground first stated, on which a rehearing is asked, go into a discussion of other matters involved in the merits of the case, which have already been considered by the court, and passed upon in the opinion hitherto filed. We do not deem it necessary to reconsider those matters, including the supposed distinction between the note of November 22, 1888, for $45,000, and the other notes covered by the settlement, and shall therefore attend only to the special matter alleged in the petition which is substantially this: whether the conclusion which we reached ought to stand, in view of the allegation contained in the pleadings. The ground of complaint is that the settlement of October 16, 1890, between the administrators and William Means, is alleged in the bill to have been made upon a fraudulent combination with William Means for the purpose of defeating the rights of the plaintiffs, and not that it was a fraud upon him, as the court appears to have found it to be, and upon which latter view it is said the conclusion of the court rests; and thereupon it is contended that the decision is inconsistent with the allegations of the bill. We do not think this...